Veterans Seminar Co-Sponsored with SBOT Military and Veterans Law Section

Veterans Justice Clinic FEBRUARY 3, 2021 Course Directors: John Convery & Terri Zimmermann

Co-sponsored with the State Bar of Texas Military & Veterans Law Section Seminars sponsored by CDLP are funded by the Court of Criminal Appeals of Texas.

Texas Criminal Defense Lawyers Association

Veterans Seminar Co-Sponsored with SBOT Military and Veterans Law Section Table of Contents

Speaker

Topic Wednesday, February 3, 2021

Jason Kercheval Hon. Jefferson Moore and Bud Ritenour

A Great Honor: How and Why We Represent Veterans-VTC Staff Ethical Issues for the Defense A Look Inside the Bexar County Veterans Treatment Court

Candace Witt

What the VJO Can Do for You and Your Clients

Melanie Davis

H.O.N.O.R. Mentoring and the Triumph Program

Hon. John Roach John Fabian, PSY.D., J.D., ABPP Dorothy Carskadon Rick Rousseau DonMichael Barbour

The VALOR program and the Regionalized Veterans Treatment Court When They Come Home – the Effect of PTSD and TBI on a Veteran’s Conduct Getting the Most from What the VA Offers Maximizing VA Benefits for Your Client Upgrading “Bad Paper” (Discharge Review Boards and Boards for Correction of Military Records)

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Texas Criminal Defense Lawyers Association

Veterans Seminar Co-Sponsored with SBOT Military and Veterans Law Section Table of Contents

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

VETERANS SEMINAR CO-SPONSORED WITH SBOT MILITARY AND VETERANS LAW SECTION SEMINAR INFORMATION Date Location Course Directors Total CLE Hours

February 3, 2021 Livestream Event John Convery and Terri Zimmermann 7.25 Ethics: .75

Wednesday, February 3, 2021 Time

CLE

8:45 am 9:00 am 9:45 am

Daily CLE Hours: 7.25 Topic

Opening Remarks .75 A Great Honor: How and Why We Represent Ethics Veterans-VTC Staff Ethical Issues for the Defense .75

10:30 am

A Look Inside the Bexar County Veterans Treatment Court

Ethics: .75

Speaker John Convery and Terri Zimmermann Jason Kercheval Hon. Jefferson Moore and Bud Ritenour

Break

10:45 am

1.0

What the VJO Can Do for You and Your Clients

Candace Witt

11:45 am

.50

H.O.N.O.R. Mentoring and the Triumph Program

Melanie Davis

12:15 pm

Lunch Break

12:30 pm

1.0

Lunch Presentation: The VALOR program and the Regionalized Veterans Treatment Court

Hon. John Roach

1:30 pm

1.0

When They Come Home – the Effect of PTSD and TBI on a Veteran’s Conduct

John Fabian, PSY.D., J.D., ABPP

2:30 pm

1.0

Getting the Most from What the VA Offers

Dorothy Carskadon

3:30 pm

Break

3:45 pm

.75

Maximizing VA Benefits for Your Client

Rick Rousseau

4:30 pm

.50

Upgrading “Bad Paper” (Discharge Review Boards and Boards for Correction of Military Records)

DonMichael Barbour

5:00 pm

Adjourn

TCDLA • 6808 Hill Meadow Drive • Austin, Texas 78736 • 512.478.2514 p • 512.469.9107 f • www.tcdla.com

Texas Criminal Defense Lawyers Association

Veterans Seminar Co-Sponsored with SBOT Military and Veterans Law Section February 3, 2021 Livestream

Topic: A Great Honor: How and Why We Represent Veterans-VTC Staff Ethical Issues for the Defense Speaker:

Jason Kercheval

101 Simonton St Conroe, TX 77301-2861 (936) 756-5571 Phone (936) 441-5745 Fax jkercheval@priceandprice-law.com

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

A Great Honor: How and Why We Represent Veterans-VTC Staff Ethical Issues for the Defense Jason Kercheval Price & Price

Oath of Enlistment I, _____, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice. So help me God."

The Code of the United States Fighting Force • Article I: •

I am an American, fighting in the forces which guard my country and our way of life. I am prepared to give my life in their defense.

• Article II: •

I will never surrender of my own free will. If in command, I will never surrender the members of my command while they still have the means to resist.

• Article III: •

If I am captured I will continue to resist by all means available. I will make every effort to escape and aid others to escape. I will accept neither parole nor special favors from the enemy.

• Article IV: •

If I become a prisoner of war, I will keep faith with my fellow prisoners. I will give no information or take part in any action which might be harmful to my comrades. If I am senior, I will take command. If not, I will obey the lawful orders of those appointed over me and will back them up in every way.

• Article V: •

When questioned, should I become a prisoner of war, I am required to give name, rank, service number and date of birth. I will evade answering further questions to the utmost of my ability. I will make no oral or written statements disloyal to my country and its allies or harmful to their cause.

• Article VI: •

I will never forget that I am an American, fighting for freedom, responsible for my actions, and dedicated to the principles which made my country free. I will trust in my God and in the United States of America.

What is a Veteran?

PTSD, MST, TBI • Posttraumatic Stress Disorder (PTSD)

• a psychiatric disorder that may occur in people who have experienced or witnessed a traumatic event such as a natural disaster, a serious accident, a terrorist act, war/combat, or rape or who have been threatened with death, sexual violence or serious injury

• Military Sexual Trauma (MST)

• sexual assault or harassment experienced during military service • Tex Gov’t Code: any sexual assault or sexual harassment that occurs while the victim is a member of the United States armed forces performing the person’s regular duties

• Traumatic Brain Injury (TBI)

• a disruption in the normal function of the brain that can be caused by a bump, blow, or jolt to the head, or penetrating head injury. (CDC)

Prevalence of PTSD, MST, TBI • PTSD

• Vietnam Veterans

• 30.9% Men; 26.9% Women; at some point in their lives

• Gulf War

• Estimated at 10.1% of Veterans at some point in their lives

• OEF/OIF

• 13.8% of Veterans at some point in their lives

• MST

• 13.9% of Veterans (1.9% Men; 23.6% Women) when only measuring assault • 31.2% of Veterans (8.9% Men; 52.5% Women) when only measuring harassment

• TBI

• Nearly 414,000 TBIs among U.S. service members worldwide between 2000 and late 2019. More than 185,000 Veterans who use VA for their health care have been diagnosed with at least one TBI. • 81% are classified as having mild TBI, 9% moderate TBI, and 6% severe TBI.

What is a Veterans Treatment Court (VTC)?

• A VTC is a specialty court authorized under Chapter 124 of the Texas Government Code established to: • Provide a nonadversarial system to provide individualized treatment plans for veterans and active duty servicemembers with qualifying diagnosis that have committed acts of criminal conduct as a result of their underlying qualifying diagnosis • Can be pre-adjudication (PTD/DADJ) or post-adjudication (conditions of probation) • Involves judges, prosecutors, defense attorneys, probation officers, and mental health professionals

Where are VTCs?                    

Bell Bexar Brazoria Collin Comal Dallas Denton El Paso Fort Bend Galveston Guadalupe Hays Harris Hidalgo Midland Montgomery Nueces Smith Tarrant Travis

  



Webb Williamson North Texas Regional VTC o Collin o Fannin o Grayson o Kaufman o Rockwall City of Dallas (South Oak Cliff VTC)

How to Qualify for VTC • Be a Veteran or currently serving member of the US Armed Forces, Reserves, National Guard, or State Guard • suffer from a brain injury, mental illness, or mental disorder, including post-traumatic stress disorder, or was a victim of military sexual trauma • committed a criminal offense, and that injury, illness, disorder, or trauma must have “occurred during or resulted from the defendant's military service; and affected the defendant's criminal conduct at issue in the case • The prosecuting attorney agrees to allow entry to the VTC for the defendant

Judge-Driven VTC • Less team driven, and more Judge decision after input from staff • Makes decisions on treatment plan • Sanctions, if any • Graduation requirements and date

• Defense is often not involved in decision making • Defense Attorney’s role is much more traditional

Integrated Staff System • While Judge makes the decisions, the decisions are often the result of a consensus of the VTC Staff, including • • • • • •

Prosecutor Defense Attorney Probation Dep’t. of VA 3rd Party MH Providers Court Staff

• Staff Defense Attorney is heavily involved in decisions regarding treatment, sanctions, graduation requirements and date

Ethical Rules and Issues • Rule 1.02, Texas Disciplinary Rules of Professional Conduct • Rule 1.05, Texas Disciplinary Rules of Professional Conduct • Texas Rules of Evidence 503

• Rule 1.06, Texas Disciplinary Rules of Professional Conduct • Rule 1.09, Texas Disciplinary Rules of Professional Conduct • Rule 4.03, Texas Disciplinary Rules of Professional Conduct

Rule 1.05 •

(a) Confidential information includes both privileged information and unprivileged client information. Privileged information refers to the information of a client protected by the lawyer-client privilege of Rule 5.03 of the Texas Rules of Evidence or of Rule 5.03 of the Texas Rules of Criminal Evidence or by the principles of attorney-client privilege governed by Rule 5.01 of the Federal Rules of Evidence for United States Courts and Magistrates.

Unprivileged client information means all information relating to a client or furnished by the client, other than privileged information, acquired by the lawyer during the course of or by reason of the representation of the client.

•

(b) Except as permitted by paragraphs (c) and (d), or as required by paragraphs (e), and (f), a lawyer shall not knowingly: • (1) Reveal confidential information of a client or a former client to: • (i) a person that the client has instructed is not to receive the information; or • (ii) anyone else, other than the client, the clients representatives, or the members, associates, or employees of the lawyers law firm.

• (2) Use confidential information of a client to the disadvantage of the client unless the client consents after consultations.

• (3) Use confidential information of a former client to the disadvantage of the former client after the representation is concluded unless the former client consents after consultation or the confidential information has become generally known.

• (4) Use privileged information of a client for the advantage of the lawyer or of a third person, unless the client consents after consultation.

•

(c) A lawyer may reveal confidential information: • (1) When the lawyer has been expressly authorized to do so in order to carry out the representation.

• (2) When the client consents after consultation.

• (3) To the client, the client's representatives, or the members, associates, and employees of the lawyer's firm, except when otherwise instructed by the client.

• (4) When the lawyer has reason to believe it is necessary to do so in order to comply with a court order, a Texas Disciplinary Rule of Professional Conduct, or other law.

• (5) To the extent reasonably necessary to enforce a claim or establish a defense on behalf of the lawyer in a controversy between the lawyer and the client.

• (6) To establish a defense to a criminal charge, civil claim or disciplinary complaint against the lawyer or the lawyer's associates based upon conduct involving the client or the representation of the client.

• (7) When the lawyer has reason to believe it is necessary to do so in order to prevent the client from committing a criminal or fraudulent act.

• (8) To the extent revelation reasonably appears necessary to rectify the consequences of a client's criminal or fraudulent act in the commission of which the lawyer's services had been used.

Texas Rules of Evidence 503(b)(2) • In a criminal case, a client has a privilege to prevent a lawyer or lawyer’s representative from disclosing any other fact that came to the knowledge of the lawyer or the lawyer’s representative by reason of the attorney–client relationship.

Rule 1.06 • (a) A lawyer shall not represent opposing parties to the same litigation.

• (b) In other situations and except to the extent permitted by paragraph (c), a lawyer shall not represent a person if the representation of that person:

• (1) involves a substantially related matter in which that person's interests are materially and directly adverse to the interests of another client of the lawyer or the lawyer's firm; or • (2) reasonably appears to be or become adversely limited by the lawyer's or law firm's responsibilities to another client or to a third person or by the lawyer's or law firm's own interests.

• (c) A lawyer may represent a client in the circumstances described in (b) if:

• (1) the lawyer reasonably believes the representation of each client will not be materially affected; and • (2) each affected or potentially affected client consents to such representation after full disclosure of the existence, nature, implications, and possible adverse consequences of the common representation and the advantages involved, if any.

Rule 1.02 • (a) Subject to paragraphs (b), (c), (d), and (e), (f), and (g), a lawyer shall abide by a client's decisions:

• (1) concerning the objectives and general methods of representation; • …

• (b) A lawyer may limit the scope, objectives and general methods of the representation if the client consents after consultation.

•…

• (f ) When a lawyer knows that a client expects representation not permitted by the rules of professional conduct or other law, the lawyer shall consult with the client regarding the relevant limitations on the lawyer's conduct.

•…

Rule 1.09 • (a) Without prior consent, a lawyer who personally has formerly represented a client in a matter shall not thereafter represent another person in a matter adverse to the former client:

• (1) in which such other person questions the validity of the lawyer's services or work product for the former client; • (2) if the representation in reasonable probability will involve a violation of Rule 1.05; or • (3) if it is the same or a substantially related matter.

• (b) Except to the extent authorized by Rule 1.10, when lawyers are or have become members of or associated with a firm, none of them shall knowingly represent a client if any one of them practicing alone would be prohibited from doing so by paragraph (a).

• (c) When the association of a lawyer with a firm has terminated, the lawyers who were then associated with that lawyer shall not knowingly represent a client if the lawyer whose association with that firm has terminated would be prohibited from doing so by paragraph (a)(1) or if the representation in reasonable probability will involve a violation of Rule 1.05.

Rule 4.03 • In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.

How to Avoid Ethical Issues • Judge-Driven system

• Generally, no issues, unless Defense is asked for input from the Judge.

• Integrated Staff system

• If the Staff Defense Attorney is NOT the originally retained or appointed defense counsel, then waivers should be effective SO LONG AS THEY ARE EXPLAINED BY THE ORIGINAL ATTORNEY • Pro Se? • Amicus-style SDA?

• If the Staff Defense Attorney IS the originally retained or appointed defense counsel, Rule 1.06 also comes in to play • It’s not clear how to make this work • • • •

Limited Scope?

Clear and Effective Waivers?

Refuse to accept appointments or retainers for these clients?

Rely upon other defense attorneys?

How to Avoid Ethical Issues • Identify Veterans Pre-Consult

• Make your staff pre-screen for potentially qualifying Veterans • Consider, in light of the Rules, how to handle these clients • Consider informing the Judges of these issues to enable you to avoid appointments to these Veterans

• Recruit Other Defense Attorneys

• Nothing says there can only be one Staff Defense Attorney

• Allows each SDA to remain silent during their own client’s staffing • Makes the burden of being an SDA easier

• Limit the Scope of Representation

• You may be able to limit the scope to application to VTC only, and the Veteran would need another attorney after acceptance • You may work with another defense attorney who is not an SDA to handle applications, and then you handle only if the application fails • In light of the rules, however, this may never be ethically acceptable

Why bother with all these problems?

• A significant amount of work and ethical problems just due to being an SDA • The most rewarding interaction with the Justice System • Help people, rather than just defend them—do real Justice • Set an example of a new way to handle criminal offenses, success can lead to more specialty courts, and better societal changes in how we deal with criminality

Get more Veterans Into VTCs • If you don’t have a VTC in your area, start talking to decision makers at the Commissioners Court and the Bench • If you do have them, start reminding the Defense Bar to add military status to their initial consults • Too many Veterans never find out about VTC

• Not the easiest solution to pending charges, but usually the best • Usually expungable • Usually the Veteran needs the help

Consider Setting up a 501(c)(3) • Montgomery County has a Veterans Treatment Court Support Fund set up to provide financial support as needed for participants and their families • 98% Funded by Jury donations

Statutory Changes • Expand the footprint of VTCs • Remove Prosecutorial Veto and replace with Due Process • Reach Goals • Maybe add back DADJs for DWIs in VTC • Maybe add the ability to early terminate probation for VTC graduates where it’s otherwise prohibited • Might chip away at the prohibition

How can you help?

• Ask your PNCs if they are veterans

• Understand that Veterans often submit to authority • Extra counseling on their rights

• Get involved with a VTC

• Or work to start one in your area

• Talk to legislators • Encourage Veterans in need to seek help • Veteran Crisis Phone Number:

• Call 1‐800‐273‐8255 and Press 1 • Text 838255 • Chat online: https://www.veteranscrisisline.net/get‐help/chat

• When you thank someone for their service, understand it may be uncomfortable for the Veteran • Volunteer!

Questions?

Why We Do What We Do . . . In The Courtroom Analyzing the Storyteller and Listener By: Justin Kiechler My favorite part of any trial is when I have control of the courtroom – my audience is silent, engrossed in what I am saying, and there are few interruptions.

As I slowly rise from the counsel table, my mind focused on everything I have prepared, the 15-foot walk to the jury seems infinite. I stop in front of the jury and take a deep breath.

Meanwhile, twelve jurors look at me expectantly: What is this attorney going to tell me that I do not already know about his client? What is this attorney going to tell me that is different from what the prosecutor just said? Why is this attorney defending someone who committed such a terrible crime? What is this attorney going to do for me?

Fortunately, the juror’s questions in that moment are questions I carefully consider for each person I represent. When I stand in front of the jury, it is my job to tell them the story of my client – not just the story of the case – to share a full narrative, complete with a beginning and end, and not allow my client to be defined by a fleeting moment.

I imagine that, at some point in their career, every attorney has contemplated the difficulties of the job. Why am I still doing this? Attorneys face high levels of stress, higher-than-normal levels of depression, alcoholism, drug addiction, and a great deal of time spent away from family. A quick Google search gave me some answers to why we, as attorneys, do what we do. The first page included legal websites for attorneys who focus on a wide range of practice areas – criminal defense, estate planning, municipal law. Some of the websites include explanations about why certain individuals became attorneys, some include discussions about the desire to seek justice for clients, and others catalog the attorney’s credentials and outline how those credentials make the attorney better at their job.

I believe that, as criminal defense litigators, “why we do what we do” is what sets us apart from all other attorneys. We do not just represent clients. We represent people whose liberty is at stake, and our job during the brief time we are in the courtroom is to connect our clients with those who have the most power over them – judges and juries. We are storytellers.

I wish I could describe a foolproof method of becoming a notable storyteller. I am learning every day. Some individuals are natural storytellers, while others, like me, work hard to develop the art of weaving a narrative. I believe the path to becoming an accomplished storyteller is extensive and can take years to master. From reading books, watching movies, experiencing theater, to telling our loved ones about our day, we continuously practice and develop techniques to adequately express our thoughts. I collect information from what I

see, hear, and feel every day to improve my storytelling ability, and our distinct experiences can be beneficial to the development of unique practices.

Applying universal public speaking techniques to our storytelling can enhance how audiences perceive and digest the information we share with them. Fortunately, we live in a time where these techniques have been studied abundantly through social sciences. Exploring these areas can help you incorporate new skills in your presentations and enrich your performance in front of an audience. These social sciences and related concepts help to show us the “behind-the-scenes� of being a great presenter and understanding how the audience receives, perceives, and retains what we present to them.

Admittedly, I do not usually have ample time prior to trial to read through and digest papers and research literature detailing trial preparation. Creating question outlines for witnesses is generally more of a priority. Instead, I focus on some short guides I created to review what I need to address at trial, which always includes opening statements and closing arguments.

Included below is an outline summarizing some of the key points necessary to prepare for the moment all eyes are on you and you can tell your client’s story.

1. Physical Presentation □ Give eye contact to the individual, not the group □ Incorporate hand movement □ Utilize body movement and gestures □ Remember to have facial expressions that fit the moment; let the face speak □ Be real, not staged and polished 2. Verbal Presentation □ Focus on Pitch and Volume at correct times □ Incorporate pauses and voice inflections □ Be verbally engaging and charismatic □ Talk slow, not fast □ Let the words be honest and credible 3. General items □ Research the jurors’ story – Facebook, Instagram, court records, investigation engines □ Remove or limit the amount of introductory statements □ Whether you choose an implicit or explicit theme, make sure to be specific on the details of the theme so it resonates with the jurors □ Incorporate a memory hook, whether a phrase, word, concept, attitude, etc. i. Every time you say the memory hook, make it sound like it is the first time it is being said, not some gimmick □ Recognize that men think in pictures and women think in words □ Decide where to start the story, at the beginning, middle, or end □ Don’t forget to address the elephant in the room □ Identify the villain and hero – juror, Client, witness, law enforcement officer, or expert witness □ Decide the vantage point, whether a single vantage point or multiple vantage points, for how the story is told i. Vantage point can be physical or a specific witness point of view ii. How will the audience watch the story unfold? □ What will the meaning of my story be to the juror?

4. Connecting the Story with the Audience □ Loop the client’s story with the individual juror’s story □ Remember universal experiences and feelings that apply to everyone □ Utilize empathy throughout the story □ Create an experience for the juror; let jurors experience and visualize the story, not just hear it – show, don’t tell □ Incorporate the 5 senses – Sight, Sound, Touch, Smell, and Taste □ Be detailed, not general, when talking about the characters, scenes, and dates □ Allow the juror to give the client the opportunity to overcome the internal or external conflict with his or her vote in the case □ Allow the juror to give themselves the opportunity to overcome the internal or external conflict of voting in your favor i. Create a positive experience for the juror where they are satisfied in ruling for you

□ □

5.

6.

7.

8.

Tell parts of the story in 1st person at the applicable moments Talk in present tense, not past tense – let the juror be in the moment as if the story is taking place currently □ Be aware of what each juror needs to receive from the story and what crucial information they need to remember from the story i. Develop the frame of the story so you naturally emphasize the important parts □ Find the right story that resonates with you, so you naturally are passionate about the story you tell □ Don’t lecture, but appeal to the jurors’ feelings and concerns □ Remember that emotional connection can overwhelm rationality Opening □ Dive into the story □ Tell the story in opening □ In opening, don’t tell them everything, leave some of the details open-ended for the rest of trial; leave my client’s dilemma unresolved □ Consider a story within a story if applies and can make it easy to follow, such as the detailed story of a witness □ Tell jurors what I will want from them during opening Closing □ Don’t recite the facts of the case in closing □ Tie the story to the juror’s story in closing □ Tell jurors what I want from them in closing □ Explain the internal change of my client from this incident; how has he or she changed or been affected □ Resolve my client’s dilemma Remember □ Audience Awareness on if they are tuned in or not, listen for deep silence of the crowd □ Include appropriate re-enactments □ Set the scene physically – make the courtroom the scene □ Just Memorize the outline, don’t memorize the opening or closing, but prepare, don’t just talk □ Memorize first and last 2-3 sentences □ Incorporate proper humor when necessary and allowed Preparation □ Practice in front of audiences

References: 1. Cron, Lisa (2016). Story Genius: how to use brain science to go beyond outlining and write a riveting novel. New York: Ten Speed Press.

2. Walsh, John (2014). The Art of Story Telling: easy steps to presenting an unforgettable story. Chicago, Illinois: Moody Publishers.

3. Karia, Akash (2015). TED Talks Storytelling: 23 Storytelling Techniques from the Best TED Talks.

AkashKaria.com.

4. Garcia-Colson, J., Sison, F., & Peckham., M. (2010). Trial in Action: The Persuasive Power of Psychodrama.

Portland, Oregon: Trial Guides, LLC. 5. Patagonia: Yvon Chouinard – How I Built This. Podcast, by NPR .

6. https://thescriptlab.com/screenwriting/story/development/1005-top-10-central-themes-in-film 7. http://www.lifehack.org/316057/23-body-language-tricks-that-make-you-instantly-likeable 8. http://www.storytellingday.net/history-of-storytelling-how-did-storytelling.html 9. https://atcounseltable.wordpress.com/2013/05/20/beware-the-reptile-lawyer/ 10. https://www.onedayonly.co.za/blog/?post=this-danish-tv-ad-is-literally-the-best-weve-ever-seen300 11. https://www.youtube.com/watch?v=rk_SMBIW1mg&feature=youtu.be 12. https://www.youtube.com/watch?v=8S0FDjFBj8o

Texas Criminal Defense Lawyers Association

Veterans Seminar Co-Sponsored with SBOT Military and Veterans Law Section February 3, 2021 Livestream

Topic: A Look inside the Bexar County Veterans Treatment Court Speaker:

Hon. Jefferson Moore

300 Dolorosa Ste 3097 San Antonio, TX 78205-3030 (210) 595-8338 Phone (210) 592-1793 Fax moorelegal@gmail.com www.jeffersonmoorelaw.com

Bud Ritenour

111 Soledad, Suite 850 San Antonio, TX 78205 (210) 222-0125 Phone (210) 222-2467 Fax Ritenourlaw@gmail.com

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Bexar County Felony Veterans Treatment Court (VTC) Judge Jefferson Moore, 186th District Court (US Army Ret.) John “Bud” Ritenour (USAF Ret.)

Bexar County VTC

• So, you have a Veteran client…

Bexar County VTC • We start the Bexar County VTC in 2017 • At mandatory training, we meet Judge Robert Russell  Rock Star

Bexar County VTC

• Judge Russell’s Story…

Bexar County VTC • 4 Treatment Courts in 1 – PTSD – TBI – MSA – Substance Abuse

Bexar County VTC

• These issues did not come out of the blue • They are a result of military service • We have an obligation to to treat our military

Bexar County VTC • How does a VTC operate?

– Structure  The VTC Team – What does the Team do?

– What can your client expect?

– Why should your client even bother?

Bexar County VTC • The VTC Team – Judge – Case Manager – Probation Officer – VJO – DA – Defense Attorney – Law Enforcement Officer

Bexar County VTC • Judge – Volunteer for the extra work of a specialty court – Constant meetings, texts, and emails to manage on‐going treatment of vets – Weekly Staff meeting “Staffing” – Weekly in‐person meeting with each Vet – Grant meetings and preparation IS IT WORTH IT?

Bexar County VTC • Case Manager – Jack of All Trades – Runs the program – Leads the assessment teams – Schedules meetings – Liaison for the team to the judge – Manages grant money – Custodian of Record – Parttime Social Worker

Bexar County VTC • Probation Officer – Specialized training for a treatment court – U/As – Weekly probation meetings with vets – Manages the probation treatment programs – Staffing participant – Assessment participant

Bexar County VTC • VJO – Veterans Justice Outreach officer – Federal employee of the Veterans Affairs Department – Manages all VA programs for the vet.

• • • •

Housing assistance Substance abuse treatment (in and out patient) Counseling/mental health care Medical/dental care

Bexar County VTC • District Attorney – Ultimate decision maker regarding acceptance into the VTC – Attends assessment – Attends Staffing – Prosecutes terminations from the program

Bexar County VTC • Defense Attorney – Hired by the VTC Judge – Appointed as attorney for the VTC Vet – Counsels vet – Advocates for vet in staffing sessions – Defends vet at terminations

Bexar County VTC • Law Enforcement Officer (LEO) – New Grant money to hire – Will attend staffing – Provide liaison with local law enforcement agencies – Provide ”street” intelligence on trends – Assist probation with home visits – Effect arrests for sanctions

Bexar County VTC • So how does it work?

– HIPAA compliance – Referral from the originating judge – Assessment process – Staffing decision – If accepted, the 5 Phases and aftercare

Bexar County VTC

• Referral from Originating Judge – Must be referred.

– No referral, no acceptance into the program – Discretion of the originating judge

Bexar County VTC • Assessment – Vet applies – Vet provides his military records – Vet attends assessment appointments – Vet provides letter of interest (Why do you want to be in the VTC Program?)

Bexar County VTC • Assessment (continued) – Staff meets to discuss – Record review – Is there a “nexus” between the criminal behavior and the military service – Is the vet a good ”fit” for the program (Is drug court or mental health court better?)

– DA ultimately decides

Bexar County VTC • Assessment (continued) – Accept – Reject – Defer (Will discuss in opposite order)

Bexar County VTC • Assessment (continued) – Defer • Maybe vet needs to go to SAFPF first • Maybe vet needs to go in‐patient mental health program • Maybe vet needs to decide that he/she really wants the program • After vet completes suggested programs, will go through the assessment process anew

Bexar County VTC • Assessment (continued) • Reject – Maybe no “nexus” – Maybe vet is not a good fit at all – Maybe DA rejected (DA outvotes everyone on the staff, even the judge)

Bexar County VTC • Assessment (Continued) – Reject (continued) • Things to understand about rejection – HIPAA prevents us from talking about the deliberations » We don’t have hearings/discovery regarding rejections – The referring originating judge can only refer, not direct acceptance into the VTC program – DA makes the ultimate decision, not the VTC judge

Bexar County VTC • Assessment (Continued) – Reject (continued) • Things to understand about rejection (continued) – Consider we have grant funding requirements, we have to show that each vet is qualified to be there – We have limited slots. Not every qualified vet is always going to be accepted. Bexar has about 700 vet probationers and we have maximum 40 slots.

Bexar County VTC • Acceptance!

– 5 Phases to complete • Weekly review of each vet • Weekly appearance before the VTC judge

– Give Back Project – Graduation – After Care

Bexar County VTC • Can I get an Expunction?

– Maybe…

– No guarantee – Does vet already have a felony record?

– Was his/her participation outstanding?

– DA and originating judge must agree

Bexar County VTC • Why bother with the VTC if the vet is not guaranteed an expunction?

– Fair enough question • If the motivation to go to the VTC is solely to seek an expunction, the vet is likely not going to complete the course • It is intensive and difficult • The vets in the VTC want to be there for the treatment, not the expunction

Bexar County VTC

• Texas Government Code Chapter 124

Bexar County VTC

• Questions?

Texas Criminal Defense Lawyers Association

Veterans Seminar Co-Sponsored with SBOT Military and Veterans Law Section February 3, 2021 Livestream

Topic: What the VJO Can Do for You and Your Client Speaker:

Candace Witt, LCSWÂ Veterans Justice Outreach Specialist Michael E. DeBakey VA Medical Center 2002 Holcombe Blvd.

Houston, Texas 77030 Work Cell: 832-390-9026

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

VETERANS JUSTICE OUTREACH

Candace Witt, LCSW (VJO) Michael E. DeBakey VA Medical Center

Incarcerated Veterans

10%

Statistics (BJS) • Veterans arrested each year1,159,500 • Veterans in local jails72,600 • Percentage of incarcerated population- 10% historically; reduced to 8% more recently (BJS Report December 2015)

Learning Objectives • Review the Sequential Intercept Model (SIM) in relation to Veterans with MH and SUD issues • Learn about the 3 areas of focus of the Veterans Justice Outreach Program • Explore the history and function of Veterans Treatment Courts, including the role of the VJO Specialist

5

Mission of Veterans Justice Programs • Identify justice-involved Veterans

• Facilitate access to care

• Build partnerships

Veterans Justice Outreach Three Major Areas of Focus

Jail Outreach

Court Liaison

Community/Law Enforcement Education

Jail Outreach • • • • • •

Visiting 12 county jail sites Enrolling eligible Veterans into VHA services Connecting eligible Veterans with VHA services and community providers Providing medical records to assist in continuity of care during incarceration Communicating with other VA programs including suicide prevention and HUD VASH Providing basic info regarding Veterans Benefits & connecting with trained benefits counselors while incarcerated

Jail Programs • Stars and Stripes- Harris County • V.E.T.S.Montgomery County • Ft. Bend Veterans Unit

History of Veterans Court Programming in Texas and the Houston Area Veterans Court began in 2009 • Veterans Court Legislation in Texas (2009 – SB 1940) ; 1st Veterans Court Program- Harris County • Initially focused on combat Veterans and hazardous duty with clear linkage between military service, mental health, TBI, SUD and legal charge • Current legislation (2015 SB 1474) more broad; allows for individuals with MST to participate, transfer of cases between Veterans Courts, and development of regional courts. Diagnoses must be related to military history but does not have to be combat or hazardous duty.

• Since 2009, over 33 court programs across Texas.

Court Development in MEDVAMC Catchment Area

The picture can't be display ed.

Harris County Veterans Court - Brief History History •

• • • •

Began as a pilot project for 20 participants in December 2009 Multi-agency collaboration Felony-only First Veterans’ Court Program in Texas ~50 active cases (212)

352nd Criminal District Court – Honorable Judge George Powell

Harris County Courts at Law Veterans Court HCCLVC

• Spring 2015 • Misdemeanor • Honorable Judge Erica Hughes, Court 3

Harris County Criminal Justice Center

Montgomery County Veterans Court - Conroe History/Status

• Summer 2015 • Accepts both Felony and Misdemeanor Cases • Honorable Judge Kathleen Hamilton, 359th District Court

Montgomery County Courthouse

Fort Bend County Veterans Court History/Status

• Fall 2014 • Misdemeanor and Felony • Honorable Judge Jeff McMeans, County Court at Law #2

Fort Bend County Justice Center

Galveston County Veterans Court History/Status

• Spring 2014 • Felony and Misdemeanor • Judge Mark Henry, County Judge

Galveston County Courthouse

Brazoria County Veterans Court History/Status • Spring 2016 • Accepts Felony and Misdemeanor Cases • Honorable Judge Terri Holder, 149th District Court

Brazoria County Court House

Liberty County Veterans Court History/Status • March 2020 • Accepts Felony and Misdemeanor Cases • Honorable Judge Mark Morefield, 75th District Court

Liberty County Courthouse

Jefferson County Veterans Court History and Status • Spring 2017 • Accepts Felony and Misdemeanor • Honorable Judge Kent Walston, 58th District Court

Jefferson County Court House

What a VJO CAN do: • Serve Veterans of all eras • Assess Veteran’s health care needs and identify appropriate VA and nonVA services • Refer and link Veteran to comprehensive health care services • With Veteran consent, communicate to legal entities essential info such as diagnosis, attendance, and progress in treatment

Examples of available services • Comprehensive mental health and SUD treatment (including residential or inpatient) • Homeless programs (supportive housing and grand and per diem) • PTSD and military sexual trauma counseling • Comprehensive medical care

What a VJO CAN’T do: • Perform forensic evaluations for the court • Guarantee program acceptance • Advocate for legislation or legal outcomes • Serve VHA ineligible Veterans • Decide who gains admission to the court or decide the criteria

Sequential Intercept Model • https://www.usf.edu/cbcs/mhl p/tac/documents/mapping/sim -handout-new.pdf • https://www.criminaljustice.ny. gov/opca/pdfs/5GAINS_Sequential_Intercept.pdf

VJO Contacts VJO Staff

VJO Staff

• Loretta A. Coonan, LCSW (Harris County Veterans’ CourtFelony) 832-260-1361 • Latasha Morrison, LCSW (Harris County Courts at LawMisdemeanor) 281-814-8557 • Candace Witt, LCSW (Montgomery County and Fort Bend County Courts and Tri-County Area) 832-390-9026 • Henry Molden, LCSW (County Jail Outreach) 832-477-2463

Edward “Chad” Henderson, PhD, LCSW (Galveston and Brazoria County Veterans Court) 281-782-9080 • Andrias Lowe, LCSW (Jefferson and Liberty County Veterans Courts) 346-234-3159 •

Forensic Psychiatrists • Andrea Stolar, MD 832-728-9626 • George Nadaban, MD 713-791-1414 ext. 25786

 Develop a comprehensive state plan for mental health/ criminal justice collaboration  Legislate task forces/commissions comprising mental health, substance abuse, criminal justice, and other stakeholders to legitimize addressing the issues  Encourage and support collaboration among stakeholders through joint projects, blended funding, information sharing, and cross-training

 Institute statewide crisis intervention services, bringing together stakeholders from mental health, substance abuse, and criminal justice to prevent inappropriate involvement of persons with mental illness in the criminal justice system  Take legislative action establishing jail diversion programs for people with mental illness  Improve access to benefits through state-level change; allow retention of Medicaid/SSI by suspending rather than terminating benefits during incarceration; help people who lack benefits apply for same prior to release

 Make housing for persons with mental illness and criminal justice involvement a priority; remove constraints that exclude persons formerly incarcerated from housing or services  Expand access to treatment; provide comprehensive and evidence-based services; integrate treatment of mental illness and substance use disorders

 Ensure constitutionally adequate services in jails and prisons for physical and mental health; individualize transition plans to support individuals in the community  Ensure all systems and services are culturally competent, gender specific, and trauma informed – with specific interventions for women, men, and veterans

 Expand supportive services to sustain recovery efforts, such as supported housing, education and training, supportive employment, and peer advocacy

Jails/Courts

Reentry

Community corrections

Violation

Probation

Dispositional Court

Jail

Initial Detention

Local Law Enforcement

Arrest

Violation

Parole

Initial detention/Initial court hearings

Prison/ Reentry

Law enforcement

Jail/ Reentry

Intercept 5

Specialty Court

Intercept 4

First Appearance Court

Intercept 3

911

Intercept 2

COMMUNITY

Intercept 1

COMMUNITY

Sequential Intercepts for Developing CJ–MH Partnerships

Action for System-Level Change

Action Steps for Service-Level Change at Each Intercept • 911: Train dispatchers to identify calls involving persons with mental illness and refer to designated, trained respondents • Police: Train officers to respond to calls where mental illness may be a factor • Documentation: Document police contacts with persons with mental illness • Emergency/Crisis Response: Provide police-friendly drop off at local hospital, crisis unit, or triage center • Follow Up: Provide service linkages and follow-up services to individuals who are not hospitalized and those leaving the hospital • Evaluation: Monitor and evaluate services through regular stakeholder meetings for continuous quality improvement

• Screening: Screen for mental illness at earliest opportunity; initiate process that identifies those eligible for diversion or needing treatment in jail; use validated, simple instrument or matching management information systems; screen at jail or at court by prosecution, defense, judge/court staff or service providers • Pre-trial Diversion: Maximize opportunities for pretrial release and assist defendants with mental illness in complying with conditions of pretrial diversion • Service Linkage: Link to comprehensive services, including care coordination, access to medication, integrated dual disorder treatment (IDDT) as appropriate, prompt access to benefits, health care, and housing; IDDT is an essential evidencebased practice (EBP)

• Screening: Inform diversion opportunities and need for treatment in jail with screening information from Intercept 2 • Court Coordination: Maximize potential for diversion in a mental health court or non-specialty court • Service Linkage: Link to comprehensive services, including care coordination, access to medication, IDDT as appropriate, prompt access to benefits, health care, and housing • Court Feedback: Monitor progress with scheduled appearances (typically directly by court); promote communication and information sharing between non-specialty courts and service providers by establishing clear policies and procedures • Jail-Based Services: Provide services consistent with community and public health standards, including appropriate psychiatric medications; coordinate care with community providers

• Assess clinical and social needs and public safety risks; boundary spanner position (e.g., discharge coordinator, transition planner) can coordinate institutional with community mental health and community supervision agencies • Plan for treatment and services that address needs; GAINS Reentry Checklist (available from http://www.gainscenter.samhsa.gov/html/ resources/reentry.asp) documents treatment plan and communicates it to community providers and supervision agencies – domains include prompt access to medication, mental health and health services, benefits, and housing • Identify required community and correctional programs responsible for post-release services; best practices include reach-in engagement and specialized case management teams • Coordinate transition plans to avoid gaps in care with community-based services

• Screening: Screen all individuals under community supervision for mental illness and co-occurring substance use disorders; link to necessary services • Maintain a Community of Care: Connect individuals to employment, including supportive employment; facilitate engagement in IDDT and supportive health services; link to housing; facilitate collaboration between community corrections and service providers; establish policies and procedures that promote communication and information sharing • Implement a Supervision Strategy: Concentrate supervision immediately after release; adjust strategies as needs change; implement specialized caseloads and cross-systems training • Graduated Responses & Modification of Conditions of Supervision: Ensure a range of options for community corrections officers to reinforce positive behavior and effectively address violations or noncompliance with conditions of release

The Sequential Intercept Model

Three Major Responses for Every Community

Developed by Mark R. Munetz, MD, and Patricia A. Griffin, PhD, the Sequential Intercept Model provides a conceptual framework for communities to organize targeted strategies for justice-involved individuals with serious mental illness. Within the criminal justice system there are numerous intercept points — opportunities for linkage to services and for prevention of further penetration into the criminal justice system. Munetz and Griffin (2006) state:

Three Major Responses Are Needed: 1. Diversion programs to keep people with serious mental illness who do not need to be in the criminal justice system in the community.

2. Institutional services to provide constitutionally adequate services in correctional facilities for people with serious mental illness who need to be in the criminal justice system because of the severity of the crime.

The Sequential Intercept Model has been used by numerous communities to help organize mental health service system transformation to meet the needs of people with mental illness involved with the criminal justice system. The model helps to assess where diversion activities may be developed, how institutions can better meet treatment needs, and when to begin activities to facilitate re-entry.

The Sequential Intercept Model … can help communities understand the big picture of interactions between the criminal justice and mental health systems, identify where to intercept individuals with mental illness as they move through the criminal justice system, suggest which populations might be targeted at each point of interception, highlight the likely decision makers who can authorize movement from the criminal justice system, and identify who needs to be at the table to develop interventions at each point of interception. By addressing the problem at the level of each sequential intercept, a community can develop targeted strategies to enhance effectiveness that can evolve over time.

The Sequential Intercept Model has been used as a focal point for states and communities to assess available resources, determine gaps in services, and plan for community change. These activities are best accomplished by a team of stakeholders that cross over multiple systems, including mental health, substance abuse, law enforcement, pre-trial services, courts, jails, community corrections, housing, health, social services, and many others.

Sources CMHS National GAINS Center. (2007). Practical advice on jail diversion: Ten years of learnings on jail diversion from the CMHS National GAINS Center. Delmar, NY: Author.

Council of State Governments Justice Center. (2008). Improving responses to people with mental illnesses: The essential elements of a mental health court. New York: Author.

Munetz, M.R. & Griffin, P.A. (2006). Use of the Sequential Intercept Model as an approach to decriminalization of people with serious mental illness. Psychiatric Services, 57(4), 544-549.

Osher, F., Steadman, H.J., & Barr, H. (2002). A best practice approach to community reentry from jails for inmates with co-occurring disorders: The APIC model. Delmar, NY: National GAINS Center. www.consensusproject.org www.reentrypolicy.org www.mentalhealthcommission.gov www.mentalhealthcommission.gov/subcommittee/Sub_Chairs.htm

The GAINS Center

Plan Health & Justice The Intercept

The CMHS National GAINS Center, a part of the CMHS Transformation Center, serves as a resource and technical assistance center for policy, planning, and coordination among the mental health, substance abuse, and criminal justice systems. The Center’s initiatives focus on the transformation of local and state systems, jail diversion policy, and the documentation and promotion of evidence-based and promising practices in program development. The GAINS Center is funded by the Center for Mental Health Services and is operated by Policy Research Associates, Inc., of Delmar, NY.

To Contact Us cmhs National GAINS Center Policy Research Associates 345 Delaware Avenue Delmar, NY 12054 Phone: 800.311.GAIN Fax: 518.439.7612 Email: gains@prainc.com

Substance Abuse and Mental Health Services Administration Center for Mental Health Services

www.gainscenter.samhsa.gov

CMHS National GAINS Center

3. Reentry transition programs to link people with serious mental illness to community-based services when they are discharged.

Developing a Comprehensive for Mental Criminal Collaboration: Sequential Model

THE SEQUENTIAL INTERCEPT MODEL

Advancing Community-Based Solutions for Justice-Involved People with Mental and Substance Use Disorders The Sequential Intercept Model Intercept 0

Community Services

Intercept 1

Intercept 2

Law Enforcement

Crisis Lines

Jails/Courts

Reentry

Intercept 5

Community Corrections

Specialty Court Prison Reentry

911 Crisis Care Continuum

Intercept 4

Local Law Arrest Enforcement

Initial Detention

First Court Appearance

Jail

Dispositional Court

Violation

Violation

Jail Reentry

Parole

Probation

COMMUNITY

COMMUNITY

Intercept 3

Initial Detention/ Initial Court Hearings

Key Issues at Each Intercept Intercept 0

Intercept 1

Intercept 2

Mobile crisis outreach teams and co-responders. Behavioral health practitioners who can respond to people experiencing a behavioral health crisis or co-respond to a police encounter.

Dispatcher training. Dispatchers can identify behavioral health crisis situations and pass that information along so that Crisis Intervention Team officers can respond to the call.

Emergency Department diversion.

Emergency department (ED) diversion can consist of a triage service, embedded mobile crisis, or a peer specialist who provides support to people in crisis.

Specialized police responses. Police officers can learn how to interact with individuals experiencing a behavioral health crisis and build partnerships between law enforcement and the community.

Screening for mental and substance use disorders. Brief screens can be administered universally by non-clinical staff at jail booking, police holding cells, court lock ups, and prior to the first court appearance.

Data matching initiatives between the jail and community-based behavioral health providers.

Intervening with super-utilizers and providing follow-up after the crisis. Police officers, crisis services, and hospitals can reduce super-utilizers of 911 and ED services through specialized responses.

Pretrial supervision and diversion services to reduce episodes of incarceration. Risk-based pre-trial services can reduce incarceration of defendants with low risk of criminal behavior or failure to appear in court.

Intercept 3

Intercept 4

Intercept 5

Treatment courts for high-risk/highneed individuals. Treatment courts or specialized dockets can be developed, examples of which include adult drug courts, mental health courts, and veterans treatment courts.

Transition planning by the jail or in-reach providers. Transition planning improves reentry outcomes by organizing services around an individual’s needs in advance of release.

Specialized community supervision caseloads of people with mental disorders.

Police-friendly crisis services. Police officers can bring people in crisis to locations other than jail or the ED, such as stabilization units, walk-in services, or respite.

Jail-based programming and health care services. Jail health care providers are constitutionally required to provide behavioral health and medical services to detainees needing treatment.

Collaboration with the Veterans Justice Outreach specialist from the Veterans Health Administration.

Medication and prescription access upon release from jail or prison. Inmates should be provided with a minimum of 30 days medication at release and have prescriptions in hand upon release.

Warm hand-offs from corrections to providers increases engagement in services. Case managers that pick an individual up and transport them directly to services will increase positive outcomes.

Medication-assisted treatment for substance use disorders. Medicationassisted treatment approaches can reduce relapse episodes and overdoses among individuals returning from detention.

Access to recovery supports, benefits, housing, and competitive employment.

Housing and employment are as important to justice-involved individuals as access to behavioral health services.

Removing criminal justice-specific barriers to access is critical.

Implementing Intercept 0

History and Impact of the Sequential Intercept Model

Crisis Response

Police Strategies

Crisis response models provide short-term help to individuals who are experiencing behavioral health crisis and can divert individuals from the criminal justice system. Crisis response models include: • Certified Community Behavioral Health Clinics • Crisis Care Teams • Crisis Response Centers • Mobile Crisis Teams

Proactive police response with disadvantaged and vulnerable populations are a unique method of diverting individuals from the criminal justice system. Proactive police response models include: • Crisis Intervention Teams • Homeless Outreach Teams • Serial Inebriate Programs • Systemwide Mental Assessment Response Team

Sequential Intercept Model as a Strategic Planning Tool The Sequential Intercept Model is most effective when used as a community strategic planning tool to assess available resources, determine gaps in services, and plan for community change. These activities are best accomplished by a team of stakeholders that cross over multiple systems, including mental health, substance use, law enforcement, pretrial services, courts, jails, community corrections, housing, health, social services, people with lived experiences, family members, and many others. Employed as a strategic planning tool, communities can use the Sequential Intercept Model to: 1. Develop a comprehensive picture of how people with mental and substance use disorders flow through the criminal justice system along six distinct intercept points: (0) Community Services, (1) Law Enforcement, (2) Initial Detention and Initial Court Hearings, (3) Jails and Courts, (4) Reentry, and (5) Community Corrections 2. Identify gaps, resources, and opportunities at each intercept for adults with mental and substance use disorders 3. Develop priorities for action designed to improve system and service level responses for adults with mental and substance use disorders

Policy Research Associates We are a national leader in behavioral health services research and its application to social change. Since 1987, we have assisted over 200 communities nationwide through a broad range of services to guide policy and practice.

We conduct meaningful, quality work to improve the lives of people who are disadvantaged through evaluation and research, technical assistance and training, and facilitation and event planning that makes an impact in the field and promotes a positive work environment.

345 Delaware Ave Delmar, NY 12054 p. (518) 439-7415 e. pra@prainc.com www.prainc.com

The Sequential Intercept Model (SIM) was developed over several years in the early 2000s by Mark Munetz, MD and Patricia A. Griffin, PhD, along with Henry J. Steadman, PhD, of Policy Research Associates, Inc. The SIM was developed as a conceptual model to inform community-based responses to the involvement of people with mental and substance use disorders in the criminal justice system.

After years of refinement and testing, several versions of the model emerged. The “linear” depiction of the model found in this publication was first conceptualized

by Dr. Steadman of PRA in 20041 through his leadership of a National Institute of Mental Health-funded Small Business Innovative Research (SBIR) grant awarded to PRA. The linear SIM model was first published by PRA in 20052 through its contract to operate the GAINS Center on behalf of the Substance Abuse and Mental Health Services Administration (SAMHSA). The “filter” and “revolving door” versions of the model were formally introduced in a 2006 article in the peerreviewed journal Psychiatric Services authored by Drs. Munetz and Griffin3. A full history of the development of the SIM can be found in the book The Sequential Intercept Model and Criminal Justice: Promoting Community Alternatives for Individuals with Serious Mental Illness4.

With funding from the National Institute of Mental Health, PRA developed the linear version of the SIM as an applied strategic planning tool to improve crosssystem collaborations to reduce involvement in the justice system by people with mental and substance use disorders. Through this grant, PRA, working with Dr. Griffin and others, produced an interactive, facilitated workshop based on the linear version of the SIM to assist cities and counties in determining how people with mental and substance use disorders flow from the community into the criminal justice system and eventually return to the community.

During the mapping process, the community stakeholders are introduced to evidence-based practices and emerging best practices from around the country.

The culmination of the mapping process is the creation of a local strategic plan based on the gaps, resources, and priorities identified by community stakeholders.

Since its development, the use of the SIM as a strategic planning tool has grown tremendously. In the 21st Century Cures Act5, the 114th Congress of the United States of America identified the SIM, specifically the mapping workshop, as a means for promoting community-based strategies to reduce the justice system involvement of people with mental disorders. SAMHSA has supported community-based strategies to improve public health and public safety outcomes for justice-involved people with mental and substance use disorders through SIM Mapping Workshop national solicitations and by providing SIM workshops as technical assistance to its criminal justice and behavioral health grant programs. In addition, the Bureau of Justice Assistance has supported the SIM Mapping Workshop by including it as a priority for the Justice and Mental Health Collaboration Program grants.

With the advent of Intercept 0, the SIM continues to increase its utility as a strategic planning tool for communities who want to address the justice involvement of people with mental and substance use disorders6 .

1 2 3 4

@_PolicyResearch 5

/PolicyResearchAssociates/

6

Steadman, H.J. (2007). NIMH SBIR Adult Cross-Training Curriculum (AXT) Project – Phase II Final Report. Delmar, NY: Policy Research Associates.

(Technical report submitted to NIMH on 3/27/07.)

National GAINS Center. (2005). Developing a comprehensive state plan for mental health and criminal justice collaboration. Delmar, NY: Author.

Munetz, M.R., & Griffin, P.A. (2006). Use of the sequential intercept model as an approach to decriminalization of people with serious mental illness.

Psychiatric Services, 57, 544-549. DOI: 10.1176/ps.2006.57.4.544 Griffin, P.A., Heilbrun, K., Mulvey, E.P., DeMatteo, D., & Schubert, C.A. (Eds.). (2015). The sequential intercept model and criminal justice: Promoting community alternatives for individuals with serious mental illness. New York: Oxford University Press. DOI: 10.1093/ med:psych/9780199826759.001.0001 21st Century Cures Act, Pub. L. 114-255, Title XIV, Subtitle B, Section 14021, codified as amended at 41 U.S.C. 3797aa, Title I, Section 2991 Abreu, D., Parker, T.W., Noether, C.D., Steadman, H.J., & Case, B. (In press). Revising the paradigm for jail diversion for people with mental and substance use disorders: Intercept 0. Behavioral Sciences & the Law.

Texas Criminal Defense Lawyers Association

Veterans Seminar Co-Sponsored with SBOT Military and Veterans Law Section February 3, 2021 Livestream

Topic: H.O.N.O.R. Mentoring and the Triumph Program Speaker:

Melanie Davis

Triumph Press Publisher 214-707-0866 www.LoveYourVeterans.org www.TriumphPress.com

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Forgotten Veterans are Beyond the Crisis Point

by Melanie Davis Founder of H.O.N.O.R. Mentoring and Tackle The Shackles

The Problem Defined Veterans are the highest population of prisoners by percentage: Ten percent of all incarcerated individuals in the U.S. are veterans, according to the Bureau of Justice Statistics, while only 1% of our citizens serve in the military. Of these incarcerated, most are in prison due to mental health issues, such as PTSD or substance abuse problems.

Veterans are losing their freedom because of defending ours.

It’s common for veterans to receive harsher sentences because, in the actual words of a sentencing judge, “They, of all people, should know better,” and because, with their combat training, “They are a greater hazard to society.” Thus, the very people who protect our freedom are viewed more dangerous and unworthy of freedom inside a courtroom.

I have witnessed first-hand situations where a veteran and a civilian were simultaneously arrested and tried for the same crime, with the civilian receiving a much lesser sentence than the veteran. Across the nation, we are locking up our heroes and, once in prison, they are treated as the worst of the criminals. It is immoral for a society to send young men and women off to battle, to not treat their hidden and deadly wounds, and then throw the book at them when they mess up because of it.

“Amidst the growing concern over the suicide rate (22+ per day), many veterans don’t kill themselves, but self-medicate and deal with the traumas of war in ways that cause them to lose their freedom …these imprisoned casualties have been entirely forgotten. It is as if they are dead, while still alive. The good news is, there is still time to save them!”

1

The Hidden Wounds of our Veterans are Made Worse in Prison Christine Montross is an associate professor of psychiatry and human behavior at Brown University's medical school.

In her new book, Waiting for an Echo: The Madness of American Incarceration, she demonstrates how people with serious mental illnesses are far more likely to be incarcerated than they are to be treated in a psychiatric hospital — even though incarceration often makes mental illness worse. This is especially true with our veterans.

"People who are mentally ill to begin with are in circumstances that are not therapeutic and supportive at all, that are extremely punitive," she says. "It's unrealistic for us to imagine that people can emerge from those situations psychologically intact."

The prison systems in the U.S. are set up as places of punishment, not rehabilitation, contrary to the intent of the 65th Legislature. It is the intent of the Legislature that all prisoners, other than those with a sentence of death or life without parole, be afforded an opportunity for rehabilitation to become productive members of society upon release. However, the current design and practice, under the direction of the Executive Administration of the units, is meant merely to “manage the population” without attention to the effect on the psyche, let alone rehabilitation of those who find themselves caught up in the justice system. The crisis created by COVID-19 in 2020 has publicly revealed the severe brokenness of our prisons, but to use the word “broken” suggests it was once whole. The history of prisons in Texas, regardless of the Legislative intent, shows it has been a corrupt and unconstitutionally harsh system from the start.

How Incarceration makes Mental Illnesses Worse In the prison system, expectations are clear. There are rules and all inmates are required to follow them. If not, there are consequences, which result in greater punishment, and greater control. When a veteran with PTSD enters into that system, there is a disparity between the rigid system and their ability to comply with that system. When a veteran is not thinking clearly, when they're feeling extremely paranoid, (the very condition that led to their incarceration) veterans with PTSD may often not trust the rules that are being administered or the people who are expressing those rules.

When mentally ill people are not able to conform to the expectations that are demanded of them, the result is more severe punishments which escalate. The final punishment is solitary confinement. So when our untreated veterans, who are now incarcerated, run into trouble because of the rules in prison too many times, they can be sent to solitary confinement — 2

which is a disastrous environment for people with mental illness. It is pure torture for a healthy person, imagine what it does to our veterans with PTSD.

Prisons are Punitive Places of Trauma Prison conditions should not be an additional punishment. The prison sentence is the sanction: it holds an individual accountable for their actions and protects society. It deprives someone of their liberty and impacts on certain other rights, such as freedom of movement, which are the inevitable consequences of imprisonment, but people in prison retain their human rights and fundamental freedoms.

However, in reality prisons often do not meet even the most basic of standards, and many prison staff consider harsh treatment to be a legitimate way to deal with those they supervise.

Living conditions in a prison are among the chief factors determining one’s self-esteem and dignity. People held in humane detention conditions will be more willing and able to respond to rehabilitative programs. Those who experience punitive conditions and mistreatment on the other hand are likely to return to society psychologically shattered and in poor or worse state of physical and mental health than when they entered. Humane prison conditions reduce the prevalence of violence in prisons, harsh conditions make prison unnecessarily dangerous for everyone.

COVID-19 has exacerbated the problems that already exist, conditions which should alarm any human being with a soul. Here are just a few examples from the Texas Department of Criminal Justice and Georgia Department of Corrections specifically, but they reflect conditions our veterans, and their prison neighbors, are being subjected to across the nation: •

Texas Department of Criminal Justice (TDCJ) oversees itself. Legislation to bring in independent oversight is shot down year after year. This means, that the abuses and injustices inflicted by the system, which go against their own rules, as well as being human rights violations, are hidden by the system that refuses to be accountable. This injustice has now compounded itself as of December, 2020, when the TDCJ Executive Director turned over the Ombudsman’s Office to the Board of Criminal Justice. While this public display of “solving this oversight problem” looks good, the reality is, the Ombudsman in Texas is ONLY an office of inquiry. It has NO investigative authority, meaning, nothing has changed. Unless an inmate turns in a grievance, and then a step two grievance, according to law, it is as if nothing ever happened. In the first half of 2021, the 5th Circuit and the US Supreme Court made it very clear, if there is no grievance, there is no complaint. Very often, especially in 2020, grievance forms are intentionally not made available despite the fact they are required to be given to those who request them.

3

Retaliation is real. Very often, the inmates refuse to file grievances because they know the results will be retaliation, as the guards and prison officials will find reasons to punish them, put them into unsafe conditions or worse, the person who has filed the grievance may “end up committing suicide.” If you think this isn’t real, talk to ANY ONE of the family members of an incarcerated individual.

•

Last September, Sarah Geraghty, a lawyer for the Southern Center for Human Rights wrote to the U.S. Department of Justice requesting a federal investigation into Georgia’s prison system. The Southern Center detailed a humanitarian crisis in which homicide and suicide rates had already reached “unprecedented levels.” At least 25 inmate deaths within prison walls in 2020 were suspected homicides. According to the Southern Center, as of the time of their letter, 19 inmates had killed themselves in 2020, twice the national average for state prisons.

•

Prisoners are deprived of basic human needs for health and survival including nutrition and time outside. With COVID, lockdowns have gone on for months, with prisoners staying in cells measured in mere feet for months on end, not going outside and being fed peanut butter sandwiches three times a day, often made with lard to make it go farther. The current practice is a 14-day lockdown when an inmate tests positive for COVID. However, multiple units conveniently find a COVID POSITIVE inmate on day 15 and the lockdown process begins again. One Unit in Texas experienced over 200 straight days of lockdown, yet there was no visitation and supposedly all of the guards are tested regularly. Receiving no meal at all has become common place and going for longer than TDCJ’s own rules for showers, commissary and mail has also been occurring as the new norm.

•

The GDC’s annual report for fiscal year 2019 (the FY 2020 report has not yet been published) reveals a constant churn in staffing. Seventy-eight percent of the department’s new hires were corrections officers, according to the report. Of those, 71% quit before the year ended. Gov. Brian Kemp just proposed a 10% pay increase for prison guards that would raise their entry level salary from $27,936 to $30,730.

“They’ll hire you if you’re a warm body,” said Maine, who won an unrelated whistleblower lawsuit against the prison system in 2018. “The experienced staff is leaving as fast as they can get out of there. What you’re left with is kids trying to supervise inmates they’re afraid of.” And that’s had a domino effect. “Without adequate staffing, the maintenance begins to suffer, food service suffers because they don’t feel safe,” Maine said. “They’ve created a circular problem.” Cellphone video has depicted some of the more egregious examples of neglect. One video, shot by inmates at Macon State, showed brown sludge sputtering out of the only water spigot in their cell. Many other facilities have gone extended periods without hot water or heat in general.

4

•

TDCJ is so short staffed, they can’t let people out of the cells. With their inability to hire staff who want to work in the inhumane conditions of prison, including no air conditioning in the sweltering summer and no heat in winter, the system has turned to hiring foreigners, especially Nigerians, in order to keep the prisons staffed. These Nigerians often don’t speak English, or it is so broken it sounds like their native tongue and indiscernible to the inmates. There is significant documentation these Nigerians treat the prisoners even more abusively than the US guards. (Now imagine the problems with foreigners guarding our protectors. Do veterans deserve this?)

Even with this “solution,” the prisons are severely understaffed and the prisoners are suffering deplorable and unconstitutional conditions.

Here is the first-person experience from the mother of an incarcerated veteran, “My son was a Naval Air Traffic Controller on the front lines in Iraq. He got addicted to prescription drugs while serving. As the mother of an incarcerated veteran, I have been indoctrinated into a world I never thought I would see. Not only all the horrific treatment prisoners are subjected on a daily basis, but the fact that my son has sat in this petri dish 1 year after being approved for parole because of the COVID pandemic. Our Texas government refused to release these people already vetted and approved for release and as a result he contracted COVID in prison. I thought I worried for him while he served his country, but nothing prepared me for the concern I have for his mental, physical and emotional health knowing he is in the Texas prison system. These Veterans are entering the system with PTSD and are coming out with much more to deal with.”

These descriptions only begin to reveal all that is broken in our prisons systems.

The Answer Lead with Veterans It is extremely difficult to pass legislation for prison and justice reform. Part of the problem is the ignorance of the general public to the conditions of prison and who is held there. Most believe those in prison “deserve what they get” and “should be kept away from us” not realizing that most in prison will be released one day, with more extreme health challenges than when they went in. It should be cited that mental health and trauma are the primary reasons most commit crimes and our lack of mental health support is a primary cause of crime.

Legislators who should be promoting and supporting prison reform legislation notoriously get it “put off,” essentially swept under the rug, so they don’t have to answer to their constituents who remain uneducated on the need and reasons for prison reform. It is also true that prison is an industry, and there are many who have a vested interest in keeping people there as long as possible, especially as prisoners in Texas are not paid for their work.

Systemic slavery is strong and legal in the United States, in the form of prisons.

5

Fixing a broken prison system requires the support and expectation of society that we do better. It is difficult to break the stigma that prisons are full of murderers and gang members, like we see being arrested and imprisoned on all the cop shows on television and the silver screen. Society believes that a lawyer or D.A. has “won” by getting the harshest sentence possible for those who have gone on trial, and we are now experiencing daily exonerations of wrongfully convicted. While this overzealousness to convict is the current measurement of the skills of professionals in our justice system’s, one thing all of the general public can agree on….

Mass incarceration of our wounded veterans is wrong While many states have incorporated Veterans Courts, we know that we owe those who have been willing to die for each one of us and our freedom so much more than taking their freedom after defending ours. We know that their mental health issues have been severe for decades with shocking suicide rates, but the knowledge of their incarceration rate has remained unknown…. They are the Forgotten Veterans.

While we can’t bring back and serve those who have fallen to the battles at home, the veterans who are locked up and treated like dogs, are still there for us to reach and help.

They deserve treatment, not punishment. This is a message that can be spread throughout our nation, through the movement of Tackle The Shackles.

While it may be difficult to pass legislation that prevents veterans from going to prison, we can do something humane and ethical… turn prison into places of rehabilitation and healing, Lead with the veterans…. By serving them, we can eventually change the paradigm enough to serve all.

The Veterans of Ferguson Unit in Texas 6

Texas Criminal Defense Lawyers Association

Veterans Seminar Co-Sponsored with SBOT Military and Veterans Law Section February 3, 2021 Livestream

Topic: The VALOR program and the Regionalized Veterans Treatment Court Speaker:

Hon. John Roach

2100 Bloomdale Rd Ste 20012 McKinney, TX 75071-8318 (972) 548-4409 Phone judgeroach@co.collin.tx.us

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

North Texas Regional Veterans Court THE HONORABLE JOHN R. ROACH, JR., PRESIDING JUDGE

North Texas Regional Veterans Court The Regional Court: • Comprised of five North Texas counties: Collin – Rockwall – Grayson – Kaufman – Fannin

• The regional concept maximizes community resources & outreach in North Texas. ➢ Assists smaller counties lacking the ability to effectively support veterans’ treatment programs.

North Texas Regional Veterans Court Program Funding: • Zero cost to taxpayers • All program funds (100%) are provided by the Texas Veterans Commission

• Apply for TVC grants annually

North Texas Regional Veterans Court Treatment Team: • Presiding Judge

• Defense Attorney

• Court Coordinator

• County Sheriff’s Office Staff

• Case Manager

• Supervision Officer

• Mental Health Consultant

• County Veterans Services Officer

• Veterans Justice Outreach Specialist • Assistant District Attorney

• Peer Mentor Coordinator

North Texas Regional Veterans Court Team Composition: •

Presiding Judge, Court Coordinator, Case Manager, Clinical Director and Veterans Justice Outreach Specialist remain the same for each county.

•

Individual teams for each county provide volunteers from: - DA Rep. - Probation Officer - Defense Attorney - Veterans Service Officer - Sheriff’s Office Rep.

North Texas Regional Veterans Court Program Phases: • Phase I –

Orientation/Assessment ➢ Assessment/Crisis Stabilization/Intervention & Early Recovery

Upon entering the program, the JIV is evaluated by our Clinical Psychologist: ➢ In-depth interview for customized treatment plan; ➢ DSM-5 to assess Post-Traumatic Stress (PTSD), Traumatic Brain Injury (TBI), Multiphasic Personality Inventory Assessments, etc.

North Texas Regional Veterans Court Program Phases: • Phase II – Treatment & Recovery ➢ Active Recovery & Relapse Prevention

• Phase III – Reintegration ➢ Continuing Care

North Texas Regional Veterans Court Available Services: • Counseling ➢ Group & Individual, Traumafocused, Cognitive Behavioral/Processing, Acceptance Commitment, etc.

• Housing • Transportation

• Alcohol & drug monitoring

• Education

• Medical care

• Vocational training

• Texas Veterans Commission

North Texas Regional Veterans Court Standard Process Flow: Veteran Application

Treatment Plan

Court Coordinator Assessment

DA Approval

Team Interview & Approval

Psych Evaluation

Admission into Program

JIV Plea

North Texas Regional Veterans Court The program currently supervises 76 participants: Current Participants

Most Common Offense

Predominant Age Range

Graduates

Unsuccessful Discharge

Collin

33

Misdemeanor DWI

26-35

47

30

Rockwall

14

Misdemeanor DWI

26-35

31

3

Grayson

13

Misdemeanor DWI

26-35

15

14

Kaufman

7

-

26-35

14

3

Fannin

9

Misdemeanor DWI Felony PCS

36-45

8

9

County

North Texas Regional Veterans Court

Questions?

VALOR Veterans Accessing Lifelong Opportunities for Rehabilitation

Philosophy: Veteran offenders should be held strictly responsible and

accountable for their actions, while being provided alternative resources for positive and pro-social behavioral changes.

Our program is designed to help Veteran defendants develop better decision-making, coping skills, and provides them with the necessary tools to enhance their well-being to assist with reintegration into society. All programs offered in our program use evidence-based practices.

Program Facts: • “Gap” between court supervision and incarceration.

• Run jointly by the North Texas Regional Veterans Court, Collin County Sheriff’s Office and Collin Country CSCD. • State-funded Intermediate Sanction Facility.

• In-custody facility offering work programs and intensive treatment alternatives for felony/misdemeanor Veteran offenders facing probation revocations or incarceration.

Program Eligibility • • • • • • •

Open to Veterans of the Armed Forces (to include State and National Guard) Must NOT have Dishonorable discharge Both Felonies and Misdemeanor cases are eligible Non-Violent Offenses (please call for pre-authorization) No Conviction for Assaultive Charges No Sexual Offenses Complete Classification Evaluation

Time Frame: TWO available tracks. ➢ VALOR-RP (Restorative Program) • 60 day program • Eligible Misdemeanor & Felony offenses

➢ VALOR-IP (Intensive Program) • Up to 6 months for Felony offenses

Program Admission: Court Orders • Original Terms and Conditions of Supervision • Amended Orders / Sanctions

Plea Bargain • After Motion to Revoke filed.

• After Motion to Adjudicate filed.

Program Admission, cont.: Out of County Transfers • All Texas Veterans may be eligible.

• Collin County does not provide transportation to and from the program facility.

Volunteer • Veteran offender may request program for Substance Abuse Services.

• Veteran offender may request in lieu of Revocation or Adjudication.

Admission Process – Probation to Probation The Veterans’ probation officer must contact the Collin County probation representative in order to start the application process.

Collin County VALOR Probation: • Kelly Hallmark: 972-548-3680; khallmark@co.collin.tx.us

• Brittany Gurney: 972-548-3678; bgurney@co.collin.tx.us • Lt. Henry Rodriguez: 972-547-5095; hrodriguez@co.collin.tx.us

Team Members: Program Director

Judge John Roach, Jr. - USMC

Program Coordinator

Brennan Jones, MSW - USMC

Clinical Director

Misty Ely, LCSW - USMC

Lead Clinician

Tess Lipscomb, LMSW

Case Manager

Justin Ewing – US Army

Intake • Complete Classification Evaluation • Psychological Assessment ➢ Post-Traumatic Stress (PTSD), Traumatic Brain Injury (TBI), drug and alcohol screening, depression, anxiety – in accordance with the DSM 5 • Follow-on neuropsychological test batteries ➢ MMPI-2, MCMI-III and WAIS-III

Services Received: Each participant is given a treatment plan based on their clinical assessment. ✓ One-on-one counseling with a licensed social worker ✓Seeking Safety (PTSD & SUDs) ✓Wellness & Recovery (anxiety & depression) ✓Trauma informed yoga ✓ArtHEALS groups ✓Trauma informed CBT groups ✓Moral Reconation Therapy

✓Substance use treatment, AA/NA ✓Celebrate Recovery, Overcomers ✓Lifeskills and Budgeting, Parenting ✓Anger Management, Conflict Resolution ✓Narrative Journaling ✓Job Readiness

Programming/Daily Activities • From the first day of admission into the program, we educate VALOR participants to be more responsible.

• We provide a structured environment and teach work ethic like their military experience.

• Develop better decision-making and coping skills • Provide the necessary tools to enhance well-being and assist with reintegration into society.

• 0400-0530 - Reveille/Hygiene • 0500-0600 - Breakfast • 0615 - Scheduled Medications • 0700-1130 - Work Crew • 1130-1230 - Break/Homework • 1230-1330 - Lunch • • • •

1330-1430 - Commitment to Change 1500-1630 - Individual Counseling 1630-1715 - Seeking Safety 1715-1830 - Integrative therapy

• 1830-1900 - Dinner • 1900-2200 - Free time/Medications/TAPS • 2230 - Lights out

We track all pre and post assessment scores for every participant.

The Data Shows: ➢ There is a significant decrease in symptomology upon completion of the program compared to beginning scores.

➢ Most leave the program no longer meeting the diagnostic criteria for PTSD, Major Depression or Generalized Anxiety disorders.

If further residential treatment is warranted, the clinical team makes the appropriate referrals and recommendations for the participant so that care can be continued.

Programs Funded by:

Texas Veterans Commission Fund for Veterans Assistance Veterans Treatment Court Grant & Veterans Mental Health Grant

Veterans Court & VALOR Program Coordinator:

Texas Veterans Commission Justice Involved Veterans Coordinator:

Brennan Jones

Erin McGann

brijones@co.collin.tx.us

erin.mcgann@tvc.texas.gov

469-974-7731

512-815-7906

Questions?

About V.A.L.O.R.

DAILY ACTIVITIES

Admission to V.A.L.O.R.

Our V.A.L.O.R. program, run jointly by the North Texas Regional Veterans Court, Collin County Sheriff’s Office and Collin Country CSCD, is a state-funded Intermediate Sanction Facility. It is an in-custody facility that offers work opportunities and treatment alternatives for felony/misdemeanor Veteran offenders facing probation revocations or incarceration.

Our program is designed to help Veteran defendants develop better decision-making and coping skills, providing them with the necessary tools to enhance their well-being and assist with their reintegration into society. All programs offered in our program are evidence-based.

From the first day of admission into the program, we educate V.A.L.O.R. participants to be more responsible. We provide a structured environment and teach work ethic similar to their military experience. Below is an example of the basic schedule; changes in class type, date of services, and needs will be reflected on each individual treatment plan:

Court Orders • Original Terms and Conditions of Supervision • Amended Orders / Sanctions Plea Bargain • After Motion to Revoke filed.

• After Motion to Adjudicate filed.

Out of County Transfers • All Texas Veterans may be eligible.

• Collin County does not provide transportation to and from the program facility.

Volunteer • Veteran offender may request program for Substance Abuse Services.

• Veteran offender may request in lieu of Revocation or Adjudication.

Programs for Veteran Offenders (based on track they are assigned)

 Intensive/Supportive Substance Abuse Treatment (IOP/SOP)  Specialized Individual/Group Counseling: CPT, CBT, EMDR  Solution/Trauma Focused therapies that address PTSD, TBI, MST  AA and/or NA  Anger Management  Moral Reconation Therapy (MRT)/Battling Shadows  Thinking for a Change  Seeking Safety  Integrative therapies include: Art, Yoga, Narrative, & Mindfulness Practices  Life Skills/Parenting  Military Benefits

0400-0530 - Reveille/Hygiene 0500-0600 - Breakfast 0615-0700 - Scheduled Medications 0700-1130 - Work Crew 1130-1230 - Break/Homework 1230-1330 - Lunch 1330-1500 - SOP 1500-1630 - MRT 1630-1730 - Seeking Safety 1715-1800 - Integrative therapy 1800-1900 - Dinner 1900-2200 - Free time/Medications/TAPS 2230 - Lights out

V.A.L.O.R. Eligibility • • • •

Tracks 

VALOR-RP (Restorative Program) • 60 day program • eligible to Misdemeanors & Felonies



VALOR-IP (Intensive Program) • Up to 6 months for Felony Offenses

• • • • •

Open to Veterans of the Armed Forces (to include State and National Guard) Must NOT have Dishonorable discharge (provide DD214) Both Felonies and Misdemeanor cases are eligible Non-Violent Offenses (please call for pre-authorization) No Conviction for Assaultive Charges No Sexual Offenses Complete Classification Evaluation Complete TRAS Mental Health and/or Substance Use Diagnosis

C.S.C.D. M ISSION S TATEMEN T To protect the community through supervision/incarceration of the offender, to deter criminal behavior through the administration of sanctions, to encourage positive changes in the offender’s behavior and to increase community corrections involvement.

Our corrections philosophy is that offenders should be held strictly responsible and accountable for their actions, while being assisted in facilitating pro-social changes in behavior.

V.A.L.O.R. M ISSION S TATEMEN T

This program is supported by a grant from the Texas Veterans Commission Fund for Veterans’ Assistance.

The Fund for Veterans’ Assistance provides grants to organizations serving veterans and their families.

Veterans Accessing Lifelong Opportunities for Rehabilitation Tracks: Restorative (RP) or Intensive (IP)

www.tvc.texas.gov

The mission of V.A.L.O.R. and its personnel is: A. To equip Veteran offenders with cognitive tools and decision-making strategies to address errors in thinking.

B. To facilitate positive changes through participation in counseling, group activities, and skills-building exercises.

C. To model pro-social behaviors fitting of a U.S. Veteran throughout the program participation.

D. To motivate participants to exhibit positive behaviors by assisting in re-establishing control in their lives.

E. To create an environment where Veteran offenders will be safe to grieve, process, and heal from the invisible wounds of their service.

VALOR is for Veterans Only. We accept eligible Veteran defendants from across Texas. They are housed together in the same POD and attend all group sessions and work crew as one unit. This design is similar to their military experience and serves as a constant reminder that they are never alone; a community of peers struggling with the same issues.

Our philosophy is that Veteran offenders should be held strictly responsible and accountable for their actions, while being provided alternative resources for positive and pro-social behavioral changes.

VALOR is not a Conviction. The program is designed for Veterans on probation, therefore although housed in an ISF facility, Veterans will not lose their VA disability benefits based on a conviction status.

Why Choose VALOR? VALOR is a Treatment Program. Each participant is assigned a clinical therapist and an individual treatment plan is created for their specific needs in accordance with their assessment scores. Their goals and success are measured not only by their program participation, but also on their personal growth.

Community Correctional Facility Mailing: P.O. Box 2829 Physical: 4800 Community Ave. McKinney, Texas 75071 Phone: (972) 547-5790 Fax: (972) 547-5795

For More Information and to Apply Contact:

Kelly Hallmark: 972-548-3680 Brittany Gurney: 972-548-3678 Lt. Henry Rodriguez: 972-547-5095

OVERVIEW The Veterans’ Court is a diversion program for Justice-Involved Veterans (JIV) who are facing prosecution for one or more criminal cases. The program offers offenders a treatment option that is judicially supervised. It is designed to divert JIV out of the traditional criminal justice process and into appropriate treatment/rehabilitative alternatives. Once the JIV has been screened, assessed, and approved for participation in the program, he/she will promptly begin a treatment regimen that is specific to his/her needs.

POINT OF CONTACT

Brennan Jones

Program Coordinator brijones@co.collin.tx.us Office: (469) 974-7731 This program is supported by a grant from the Texas Veterans Commission Fund for Veterans’ Assistance.

The Fund for Veterans’ Assistance provides grants to organizations serving veterans and their families.

GOALS Our program’s goals are to find JIV, assess their needs, offer assistance, manage their care, and provide them with successful treatment options ultimately leading to community reintegration, and resolution of their criminal case(s).

MISSION Our mission is to provide support and rehabilitation opportunities to qualified JIV criminal defendants whose crimes were materially connected to injuries suffered as a result of honorable service in the United States Armed Forces.

www.tvc.texas.gov

North Texas Veterans’ Court Program Honorable John R. Roach, Jr., Presiding Judge

PROGRAM STRUCTURE Participants will assist in developing their individualized treatment plan.

A phase system is utilized to measure participant progress.

Services for education, counseling, drug/alcohol monitoring, and other needs are provided by outside agencies.

Participants are referred to these agencies throughout the program, as needed.

Supervision Monitoring – In addition to the Veterans Court Probation Officer, a Case Manager will monitor each participant placed in the program. The Case Manager will work closely with the Program Manager and service providers.

Compliance Hearing – All Veterans Court participants are required to attend monthly compliance hearings.

During the hearing, the progress of each participant is reviewed in open court. Both incentives and sanctions are used as methods of motivation.

Disposition of Court Case – The Veterans Court Diversion Program is a 12-to-24 month program. The period directly relates to the participant’s needs and/or compliance.

Upon successful completion of the program, the case(s) are dismissed (if allowed by law). In the event the agreement is terminated, the case(s) are remanded to the court of origin for continued prosecution.

PROGRAM COST Each JIV is subject to a program fee not to exceed $1,000. JIV may be responsible for costs of treatment services including but not limited to drug urinalysis, drug and/or alcohol monitoring devices, evaluations, inpatient/outpatient care, counseling, etc.

ACCESS TO THE PROGRAM District Attorney (DA) Approval – All cases/applications are reviewed by the County District Attorney’s office for initial approval.

Referrals – Accepted from a variety of sources, including law enforcement, jail staff, judges, defense attorneys, family, friends, prosecutors, and mental health professionals.

Intake Process – •

Once a referral is received, the Program Manager reviews it to ensure the criteria are met and submits the application to the county DA’s office for initial review.

•

Following DA review, and if approved, the JIV is scheduled for a face-to-face interview with the Veterans Court treatment team, who will make the final decision for approval.

•

The JIV, their attorney and court of origin are notified of the treatment teams’ decision.

•

If approved, the JIV is scheduled to plea into Veterans Court. Each plea takes place in front of Judge Roach and includes transferring the case from the originating court into Veterans Court.

ELIGIBILITY CRITERIA •

•

•

Veteran or current member of the U.S. Armed Forces, including a member of the Reserves, National Guard, or State Guard.

Connection between military service and current offense; issues resulting from military service materially affected the criminal conduct at issue in the case.

Must NOT have received a Dishonorable Discharge.

Texas Criminal Defense Lawyers Association

Veterans Seminar Co-Sponsored with SBOT Military and Veterans Law Section February 3, 2021 Livestream

Topic: When They Come Home – the Effect of PTSD and TBI on a Veteran’s Conduct Speaker:

John Fabian, PSY.D., J.D., ABPP 5716 W US 290 Ste 110 Austin, TX 78735 (512) 487-7216 john@johnmatthewfabian.com

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Veterans and Violence Part I:

Forensic Psychological and Neuropsychological Evaluations of Veterans with Posttraumatic Stress Disorder and Traumatic Brain Injury

By John Matthew Fabian

Introduction

As a result of the pervasiveness of polytrauma experienced in soldiers serving in Operation Enduring Freedom (OEF-Afghanistan) and Operation Iraqi Freedom (OIF), and the recent homicides and violent offenses committed by returning veterans from the Middle East that have gained national attention, there is growing concern of their adjustment to civilian life. Of concern is their risk of future mental health problems, substance abuse, psychosocial adjustment, and risk for suicide, violence, and homicide.

The objective of this two-part article is to discuss the nature and prevalence of traumatic brain injury (TBI) and posttraumatic stress disorder (PTSD) in active military and veterans as well as the forensic psychological and neuropsychological assessment of these conditions in legal matters.

In Part I, the author will highlight the cumulative effects of traumatic brain injury and PTSD on the brain and their relationship to substance abuse and addiction, violence, and ultimately homicidal behavior.

In Part II, the author will apply the forensic assessment of military servicemen/women with TBI and PTSD to legal

issues in criminal cases in both Texas and federal courts.

The reader should also appreciate that the information in this article also is relevant to civilian PTSD, TBI, and violent offenses.

Nature and Prevalence of TBI in Iraq and Afghanistan Veterans

There is a growing concern regarding combat-related traumatic brain injury in the current conflicts of OEF and OIF. Traumatic brain injury is a common consequence of modern warfare. In these Middle Eastern conflicts, the blast injury has arisen as a new mechanism of brain injury.

Blast induced brain injury can cause high rates of sensory impairment, pain issues, and polytrauma including serious brain and medical injuries as well as PTSD. Recently, the Joint Theater Trauma Registry analyzed wounding patterns and mechanisms of combat wounds from the current conflicts and found an increase in numbers of injuries to the

October 2020 8 VOICE FOR THE DEFENSE 27

head and neck region in the current OEF and OIF conflicts.1 A recent study found that 88% of combat-related traumatic brain injuries involved exposure to explosions (improvised explosive devices - IED’s, mortar, mine, and rocket-propelled grenades).2 A study from the Defense and Veterans Brain Injury Center of returning soldiers treated at Walter Reed Army Medical Center indicated that about 60% of those injured by explosion while deployed had a TBI (44% mild TBI, 56% moderate to severe TBI).3 Most of these TBIs occurred when an external force significantly disrupted brain function often with evidence of a period of loss of consciousness (LOC) or alteration in consciousness, including possible confusion and disorientation, as well as loss of memory (amnesia) for events immediately before, during, or after the injury.

When considering combat specific traumatic brain injuries, data from the Navy-Marine Corps Combat Trauma Registry for OIF revealed that being wounded in action was associated with more severe traumatic brain injury (skull fracture in 26% of cases), injury to more areas of the body (polytrauma), and a higher rate of evacuation. 4A recent set of studies of combat injured service members receiving inpatient care at VA polytrauma rehabilitation centers indicated that 97% had a TBI, more than half experienced mental health symptoms including depression and PTSD, as well as issues related to pain.5 Studies have shown that the overall rate of deployment related TBI is more significant and about twice as frequent than non-deployed personnel. TBI screening of specific military populations soon after return from deployment have found rates between 15% and 23% for TBI’s.6 The majority of deployed head injuries are mild in nature related to concussions including alteration of consciousness rather than a complete loss of consciousness or posttraumatic amnesia, yet many veterans returning to the U.S. continue to experience persistent post concussive symptoms.7

The Neuropsychology TBI

Traumatic brain injuries vary between mild, moderate, and severe and about 80% of all TBIs are mild in severity.

Mild concussive injuries are the most common type of TBI, and repetitive concussive injuries are a major focus of military medicine due to their prevalence. While moderate and severe TBI’s often have structural injury which can be seen in neuroimaging (MRI, CT scan), complicated mild TBI’s often have structural injury and abnormal neuroimaging while uncomplicated and mild TBI’s such as concussions often do not have structural injuries revealed on imaging.

Those at risk for mild TBI include the following: 1. Young men ages 15 to 24 years of age.

2. Individuals of low socioeconomic status.

3.

Individuals who have reckless lifestyles including substance abusers.

28 VOICE FOR THE DEFENSE 8 October 2020

4. African/American and minority status individuals.

5. Individuals living in high crime areas.

6. Individuals with a history of ADHD, low IQ, and/or substance abuse.

Many veterans qualify for a number of these demographic risk factors prior to their admission to the military. The factors most significant in differentiating severities of traumatic brain injury include acute injury characteristics such as duration of unconsciousness and amnesia as well as neurological status in areas of motor function, verbal responding, and response to external commands and stimuli.8 Neuropsychological and emotional sequelae or effects after TBI germane to post-concussive syndrome include the following: 1. Disorientation and confusion.

2.

Attention, concentration, and processing speed deficits.

3. Short-term memory deficits.

4. Executive functioning deficits.

5. Fatigue and lethargy, lack of motivation.

6. Sleep disturbance.

7. Delayed motor/verbal responses.

8. Language/communication deficits.

9. Substance abuse.

10. Depression.

11. Irritability and aggression.

12. Impulsivity.

13. Problems with balance 14. Headaches and chronic pain.

15. Impaired hearing and vision 16. Sensitivity to light and noise 17. Difficulties in word finding 18. Personality changes 19. Social isolation Recent studies of Army soldiers specify that most brain injuries are mild in severity and blasts were by far the most common mechanism of injury (88%).9 Researchers concluded that TBI may result from primary, secondary or tertiary effects of blast exposure which refer to the direct effects and injuries of the blasts.10 Chronic traumatic encephalopathy (CTE) has become popular in the literature of athletic concussions, and this type of brain injury may also be related to veterans with a history of multiple concussions or subconcussive blows to the head.

Importantly, blast exposed veterans report higher levels of PTSD than those with non-blast mild traumatic brain injuries, and therefore a history of polytrauma is common in many veterans exposed to Middle East war related combat.11

DSM-5 and TBI

The DSM-512 added a mild neurocognitive disorder associated with traumatic brain injury diagnosis which is caused by an impact to the head or other mechanisms of rapid movement or displacement of the brain in the skull as can happen with blast injuries. The mild neurocognitive disorder diagnosis includes primarily evidence of modest

cognitive decline from a previous level of performance in one or more cognitive domains (complex attention, executive function, learning and memory, language, perceptual-motor, or social cognition) based on concern of the individual, a knowledgeable informant, or the clinician that there has been a mild decline in cognitive function; and a modest impairment in cognitive performance, preferably documented by standardized neuropsychological testing or, in its absence, another quantified clinical assessment. The cognitive deficits do not interfere with capacity for independence in everyday activities (i.e., complex instrumental activities of daily living such as paying bills or managing medications are preserved, but greater effort, compensatory strategies, or accommodation may be required).

In contrast, major neurocognitive disorder is characterized by a significant decline from a previous level of performance and the cognitive deficits must result in a need for assistance with complex instrumental activities of daily life, such as paying bills or managing medications, or otherwise interfere with independence.

Prevalence of PTSD in Veteran Populations

The psychiatric condition of PTSD has long been a significant hallmark of the psychological effects of war.

War related PTSD includes a history of witnessing and/or experiencing traumatic events that led to several cognitive, emotional, and behavioral effects at the time of and following the traumatic event(s).

For decades, PTSD was considered more of a psychiatric rather than a neuropsychiatric disorder. Not until recently has there been more of a focus on the structural and functional brain effects of PTSD. In fact, PTSD is associated with regional alterations in brain structure and function that contribute to symptoms of neurocognitive deficits associated with the disorder. A recent meta-analytic study found significant neurocognitive effects associated with PTSD with the largest in verbal learning, followed by speed of information processing, then attention/working memory, followed by verbal memory. 13 Researchers estimate the prevalence of PTSD to be about 9% at pre-deployment with post-deployment rates of 12% and 18% for OEF and OIF troops.xii Reservists and National Guard members have often been found to have a higher probable PTSD prevalence than active duty soldiers. The following risk factors place individuals including military personnel at risk for PTSD: 1. History of childhood trauma and adversity.

2. Witnessing others wounded or killed.

3. Lower IQ. 4. Low socioeconomic status.

5. Family history of psychiatric illness.

Number one is a notable risk factor, as early trauma is predictive of later trauma.

DSM-5 and PTSD

The DSM-5 made thoughtful revisions for the assessment of veterans, especially those who commit violent offenses.

The diagnosis continues to include exposure to actual or threatened trauma, presence of intrusive symptoms, persistent avoidance of stimuli associated with the traumatic event, negative alterations in cognitions and mood associated with the traumatic event, and marked alterations in arousal and reactivity associated with the traumatic event. The changes in arousal and reactivity include irritable or aggressive behavior and reckless self-destructive behavior that are significant alterations and are related to physiological reactions and potential aggression and violent acts by veterans.

The DSM-5 PTSD diagnostic criteria are below: A. Exposure to actual or threatened death, serious injury, or sexual violence in one (or more) of the following ways: 1. Directly experiencing the traumatic event(s).

2. Witnessing, in person, the event(s) as it occurred to others.

3. Learning that the traumatic event(s) occurred to a close family member or close friend. In cases of actual or threatened death of a family member or friend, the event(s) must have been violent or accidental.

4. Experiencing repeated or extreme exposure to aversive details of the traumatic event(s) (e.g., first responders collecting human remains; police officers repeatedly exposed to details of child abuse).

• Note: Criterion A4 does not apply to exposure through electronic media, television, movies, or pictures, unless this exposure is work related.

B. Presence of one (or more) of the following intrusion symptoms associated with the traumatic event(s), beginning after the traumatic event(s) occurred: 1. Recurrent, involuntary, and intrusive distressing memories of the traumatic event(s).

• Note: In children older than 6 years, repetitive play may occur in which themes or aspects of the traumatic event(s) are expressed.

2. Recurrent distressing dreams in which the content and/or effect of the dream are related to the traumatic event(s).

• Note: In children, there may be frightening dreams without recognizable content.

3. Dissociative reactions (e.g., flashbacks) in which the individual feels or acts as if the traumatic event(s) were recurring. (Such reactions may occur on a continuum, with the most extreme expression being a complete loss of awareness of present surroundings.)

• Note: In children, trauma-specific reenactment may occur in play.

4. Intense or prolonged psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event(s).

5. Marked physiological reactions to internal or

October 2020 8 VOICE FOR THE DEFENSE 29

external cues that symbolize or resemble an aspect of the traumatic event(s).

C. Persistent avoidance of stimuli associated with the traumatic event(s), beginning after the traumatic event(s) occurred, as evidenced by one or both of the following: 1. Avoidance of or efforts to avoid distressing memories, thoughts, or feelings about or closely associated with the traumatic event(s).

2. Avoidance of or efforts to avoid external reminders (people, places, conversations, activities, objects, situations) that arouse distressing memories, thoughts, or feelings about or closely associated with the traumatic event(s).

D. Negative alterations in cognitions and mood associated with the traumatic event(s), beginning, or worsening after the traumatic event(s) occurred, as evidenced by two (or more) of the following: 1. Inability to remember an important aspect of the traumatic event(s) (typically due to dissociative amnesia and not to other factors such as head injury, alcohol, or drugs).

2. Persistent and exaggerated negative beliefs or expectations about oneself, others, or the world (e.g., “I am bad,” “No one can be trusted,” “The world is completely dangerous,” “My whole nervous system is permanently ruined”).

3. Persistent, distorted cognitions about the cause or consequences of the traumatic event(s) that lead the individual to blame himself/herself or others.

4. Persistent negative emotional state (e.g., fear, horror, anger, guilt, or shame).

5. Markedly diminished interest or participation in significant activities.

6. Feelings of detachment or estrangement from others.

7. Persistent inability to experience positive emotions (e.g., inability to experience happiness, satisfaction, or loving feelings).

E. Marked alterations in arousal and reactivity associated with the traumatic event(s), beginning, or worsening after the traumatic event(s) occurred, as evidenced by two (or more) of the following: 1. Irritable behavior and angry outbursts (with little or no provocation) typically expressed as verbal or physical aggression toward people or objects.

2. Reckless or self-destructive behavior.

3. Hypervigilance.

4. Exaggerated startle response.

5. Problems with concentration.

6. Sleep disturbance (e.g., difficulty falling or staying asleep or restless sleep).

F. Duration of the disturbance (Criteria B, C, D, and E) is more than 1 month.

G. The disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning.

H. The disturbance is not attributable to the physiological effects of a substance (e.g., medication, alcohol)

30 VOICE FOR THE DEFENSE 8 October 2020

or another medical condition.

I. Specify whether: With dissociative symptoms: The individual’s symptoms meet the criteria for posttraumatic stress disorder, and in addition, in response to the stressor, the individual experiences persistent or recurrent symptoms of either of the following: 1. Depersonalization: Persistent or recurrent experiences of feeling detached from, and as if one were an outside observer of, one’s mental processes or body (e.g., feeling as though one were in a dream; feeling a sense of unreality of self or body or of time moving slowly).

2. Derealization: Persistent or recurrent experiences of unreality of surroundings (e.g., the world around the individual is experienced as unreal, dreamlike, distant, or distorted).

• Note: To use this subtype, the dissociative symptoms must not be attributable to the physiological effects of a substance (e.g., blackouts, behavior during alcohol intoxication) or another medical condition (e.g., complex partial seizures).

Specify if: With delayed expression: If the full diagnostic criteria are not met until at least 6 months after the event (although the onset and expression of some symptoms may be immediate).

As can be seen, the PTSD diagnosis reflects the DSM’s emphasis with veterans, and highlights autonomic arousal symptoms that may be related to aggression to people, irritability, recklessness, self-destructive behavior, hypervigilance, and paranoia.

Further, the issue of dissociation explained below is important to consider and analyze, as many offenders have out of mind/body states that occur during their aggressive acts.

Polytrauma/Complex Trauma

Critical to examinations of military defendants is the issue of polytrauma. Many servicemen experienced numerous (poly) life-threatening traumatic events which have adversely affected their physical, psychological, emotional, behavioral, and cognitive functioning and wellbeing. Many military defendants possess a history of risk factors before military service, including a history of trauma, and specifically polytrauma and complex trauma. The cumulative effects of multiple traumatic events take a toll on an individual who may return to a high stress environment when they return to civilian life.

Complex trauma is the exposure to traumatic stressors including poly-victimization, life-threatening accidents or disasters, and interpersonal losses. Complex trauma often is related to deficits in attachment/bonding to parent(s), abuse and/or neglect, and adversely affects early childhood biopsychosocial development placing the youth at risk for a range of serious problems (e.g., depression, anxiety, oppositional defiance, risk taking, substance

abuse) and may lead to aggression. It is also associated with an extremely problematic combination of persistently diminished adaptive arousal reactions; episodic maladaptive hyperarousal; impaired information processing and impulse control; self-critical and aggression-endorsing cognitive schemas; and peer relationships that model and reinforce disinhibited reactions, maladaptive ways of thinking, and aggressive, antisocial, and delinquent behaviors.14 It is imperative to appreciate the military veteran and the pride of the profession and impact of peer influence.

Many veterans returning from foreign wars tend to be loyal to their country and their service and desire to return to action. Subsequently, they often minimize and or completely deny any symptoms of PTSD and TBI, as they do not want to put their service and chance to return to war in jeopardy.

Further, they often have never been examined for TBI and PTSD issues while in theatre and emphasize loyalty and duty rather than self-care.

Similarly, while the government offers TBI and PTSD screening upon return from war, many serviceman refuse such assessments and there is a peer influence quality to this refusal of assessment and treatment as they do not want to be perceived as emotionally or physically weak. Many also want to pursue other positions, posts, or governmental agency duties and positions and do not want to have any mental health assessment records following them.

Unfortunately, instead of being on the road to healing through proper assessment and treatment, they tend to turn to alcohol and drugs as a numbing coping and selfmedication effect.

The returning veteran with a history of polytrauma/ complex trauma often will ignore, minimize, and/ or lack insight into their affected emotional, cognitive, and behavioral functioning and unfortunately will not be identified and/or seek appropriate treatment and rehabilitation.

Comorbidity of TBI and PTSD

The term comorbidity relates to the simultaneous presence of two chronic diseases, conditions, or illnesses in a patient, meaning that the individual is experiencing more than one condition at the same time.

The Rand study of post Iraqi military deployment (OIF) reported a high rate of co-occurrence between a history of mild TBI, PTSD, and depression. Of those experiencing a mild TBI, about 33-44% had overlapping PTSD or depression. On examination of multiple potential predictors of PTSD, researchers found only combat intensity and mild TBI with loss of consciousness were associated with PTSD.15 The authors found that PTSD is strongly associated with mild traumatic brain injury in that 43.9% of soldiers reporting loss of consciousness from TBI met the criteria for PTSD. Mild TBI may diminish the capacity to employ

cognitive resources that would normally be engaged in problem-solving and regulating emotions after trauma, thereby leaving an individual more susceptible to PTSD and related problems.16 Ultimately, mild TBI likely increases the chance of developing PTSD. Critical to the issue of comorbidity and the co-occurrence of mild TBI and PTSD in veteran populations, is the additional prevalence of major depression and substance abuse and addiction. PTSD and depression are related to violence towards self, including suicide, and violence towards others.

Substance Use and PTSD/TBI

Unfortunately, many veterans have both PTSD and TBI and are at more significant risk for using and abusing substances due to the aggregate effect of having both disorders. Critical to the mental health assessment of the veteran, is a dual-diagnostic consideration with emphasis not only on chronic history of substance use but also of PTSD and trauma. Anger, hostility, and violence have cognitive, affective, and behavioral components which are related to the effects of PTSD, TBI, depression, and substance use. The use of substances is a coping mechanism to curb the negative emotional states that veterans often suffer. Substances, especially depressants such as alcohol, are often utilized to self-medicate the often hyperaroused emotional and cognitive state that is related to PTSD. Combat exposure and history of childhood abuse appear to manifest their influence on criminal and aggressive behavior through increase in substance use and mental health problems.17 It is critical for the mental health examiner to assess not only the PTSD but the prevalence and severity of depression and addiction.

Research has documented a strong relationship between co-occident PTSD and substance use problems in civilian and military populations of both genders.18 Similarly, there are high rates of PTSD among veterans seeking substance use treatment because those with PTSD are likely to use and abuse substances to cope with her emotional and psychological trauma. In fact, men with PTSD are five times more likely to have a substance use disorder compared to the general population. Patients with substance use disorders and PTSD may be at high risk for relapse, and their relapses may be triggered, in part, due to the trauma reminders and cues.

Similarly, traumatic brain injury is also common among those who misuse substances.19 Alcohol and drug abuse are major risk factors for those with TBI. A recent summary of studies of those with non-penetrating TBIs with and without substance use disorders revealed that those with both TBI and substance use disorder had poor neuroradiological outcomes, including reduced hippocampal and gray matter volumes, and enlarged cerebral ventricles. Executive function and memory were moderately affected, but attention and reasoning were not. Emotional functioning was worse in those with both TBI and substance use versus TBI only.20

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Unfortunately, the neurobiology of substance use and misuse also affects critical frontolimbic brain systems involved that are some of the same brain areas affected by traumatic brain injury and PTSD. 21

amygdala. Amygdala hyper-reactivity is thought to account for heightened behavioral arousal and exaggerated responses to stimuli that are perceived to be associated with danger or threat which can often lead to aggressive or violent acts.

When considering neuropsychological assessment of veterans, the neuropsychologist will evaluate relevant areas: 1. Auditory and visual attention.

2. Processing speed and working memory.

3. Auditory/verbal memory and visual memory.

4. Executive functioning (planning, reasoning, mental set shifting, problem solving, mental flexibility, disinhibtion, and impulse control) 5. Visuospatial constructional abilities and sensory perception.

6. Language abilities.

7. Intelligence.

8. Emotional intelligence.

9. PTSD and psychological functioning.

9. Cognitive effort.

The brain behavior functions that are affected in PTSD and TBI are often very similar. When considering neuropsychological testing of TBI, obviously the specific area injured in the brain impacts the area of functional deficit.

Severe TBI’s involve considerable forces, often through blasts in war producing widespread cellular death and dysfunction with clear global neurocognitive functional consequences.

Traumatic brain injury affects the cognitive, emotional, psychological, and physical functioning of an individual.

Of particular interest is the observation that the orbital prefrontal cortex and related circuitry are vulnerable to damage associated with TBI which likely account for the prevalence of executive deficits after TBI and contributes to the high rates of behavioral and emotional dysregulation.22 Neuropsychological testing of TBI often indicates deficits in attention, processing speed, executive functioning, and memory loss.

Similarly, there is a growing body of evidence that suggests that neurocognitive alterations occur in PTSD patients.23 Individuals with PTSD often perform less proficiently on learning and memory tasks with impairments more frequently found in the verbal memory domain.23 Attention and executive functioning impairments are often indicated in those with PTSD.25 PTSD is also characterized by impaired executive dyscontrol including increased perseveration and poor inhibition of inappropriate responses. Veterans often perform more poorly on continuous performance tasks that measure sustained visual attention as well as on tasks of working memory.

When considering brain structure, the hippocampus and the medial prefrontal cortex are often less responsive in those with PTSD leading to decreased inhibition of the

Veterans returning from deployment are at risk to have a number of risk factors related to psychosocial adjustment and potential future violence: 1. Histories of childhood abuse and neglect.

2. Lower socioeconomic status.

3. Potential lower levels of intelligence.

4. Lower rank.

5. Histories and current status of substance abuse and dependence.

6. Prevalence of mental health issues including PTSD, depression, suicidal, and paranoid thinking.

7. History of TBI and other medical problems.

8. Frequent history of exposure to and proficiency in weapons.

9. Prevalence of social isolation and interpersonal/ marital dysfunction when returning from war.

10. Unemployment and homelessness.

These risk factors can act in a cumulative manner in that the more risk factors that one is exposed to, the more likely a negative outcome.

Arrests in veterans are found to be significantly related to younger age, male gender, having witnessed family violence, prior history of arrests, alcohol and/or drug misuse, and PTSD with high anger/irritability more so than even the presence of combat exposure or TBI.26 Critically to this population, a polytrauma clinical triad (PTSD, TBI, and chronic pain) can be linked to suicidal ideation and violent impulses.27 In fact, suicidal ideation and violent impulses are correlated with PTSD, as well as the combination of TBI and PTSD, pain intensity and interference, drug abuse, and major depressive disorder.

Aggressive behaviors are common amongst veterans with PTSD, and within the first year after deployment, 48% of returning veterans with PTSD reported engaging in physical aggression and 20% reported in engaging in severe violence.28 Factors associated with physical aggression among U.S. Army Soldiers studied from surveys collected six months post-deployment measuring overt aggressive behavior found that aggressive behavior was associated with: 291.

Highest level of combat intensity 2. Misuse of alcohol 3. Diagnosis of PTSD 4. TBI 5. Depression 6. Prior altercation with significant other 7. Lowest rank (E1-E4) There were a relatively higher number of minor and severe physical overt aggressive actions reported among soldiers who were previously deployed, notably highest

Neuropsychological Assessment of Veterans

32 VOICE FOR THE DEFENSE 8 October 2020

Violence in Veterans

among deployed soldiers reporting the highest levels of combat intensity. Soldiers screening positive for the misuse of alcohol were also significantly more likely to report relatively higher levels of physical aggression.

In a recent study, a large percentage of previously deployed soldiers reported aggressive behaviors after returning home, for example, they: “get angry with someone and kick, smash, or punch something” (43%), “threaten someone with physical violence” (38%), or “get into a fight with someone and hit the person” (18%). 30Studies have focused on spousal aggression which found the prevalence to be significantly higher among soldiers than their civilian counterparts.31 The leading reason is the prevalence of the condition of PTSD. The condition of PTSD is related to not only aggression, but violent thoughts, ownership of a deadly weapon, paranoia, and tendency to have intoxicated states.

Research has revealed heightened aggressive behavior among veterans with PTSD.32 There are higher rates of aggressive behaviors seen in those with PTSD compared to those without PTSD (13.3 violent acts in the prior year compared to 3.54 acts for the prior year).33 Studies of veterans demonstrate a positive relationship between combat exposure and measures of aggression as combat may model and reinforce violence. Combat exposure, PTSD symptoms, and participation in killing have significant effects on aggressive behavior in veterans, especially violence to self, spouse, and others. PTSD is correlated with an onset of destruction of property, violence to persons, violent threats, ownership of multiple firearms, knives, aiming guns at family members, considering suicide with firearms, and loading guns with the purpose of suicide in mind.34 These facts suggest a tendency for veterans to be at risk to be violent towards self and others.

A recent study examined the risk of recidivism among justice-involved veterans.35 They found substance abuse and indicators of antisociality were linked to justice involvement in veterans, yet the evidence for negative family/ marital circumstances and lack of positive school and work involvement as risk factors was mixed. PTSD and traumatic brain injury, particularly when combined with anger and irritability issues, may be veteran-specific risk factors for violent offending. Other violence risk factors include combat exposure and PTSD, TBI, and homelessness/poverty.

The authors emphasized that combat exposure PTSD is particularly relevant with a history of violent offending among veterans, especially if they are exacerbated by other factors such as substance abuse and anger. They noted that traumatic brain injury is often associated with problematic behavioral and personality changes including impulsivity, aggression, low frustration tolerance, and problem-solving deficits.

The authors cited the most recent estimates indicate that ten percent of those incarcerated in federal prison have a history of U.S. military service.36 Another study examined PTSD symptoms in family versus stranger violence in Iraq and Afghanistan veterans.37

Of those veterans studied, 13% reported aggression toward a family member and 9% toward a stranger during the oneyear study period.

PTSD and Violence

Three domains of functioning are influenced by PTSD symptoms including cognition, physiological arousal, and emotions. Changes in cognition include flashbacks such as altered consciousness. Traumatized individuals tend to misperceive threat towards themselves or others in their environment. They often hold extreme beliefs about justice based on their traumatic experiences. They may believe in a need for retribution to remedy perceived wrongdoings and disregard authority or display an indifference in the law because of prior perceived and actual abuse by authority figures.

Heightened psychophysiological arousal includes evidence of anger and irritability such as hyperarousal symptoms producing the survival response of fight or flight when faced with situations perceived to be dangerous.

Hypervigilance includes the person always being on guard and suspicious of their environment even to the point of having paranoid thoughts. Exaggerated startle response may include the person reacting instinctively or impulsively to threatening stimuli.

Emotional reactions include psychological distress in which individuals with PTSD have heightened stress influencing their mental ability to make well-reasoned responses. Heightened emotions are often common with those with PTSD including elements of anxiety, fear, anger, shame, and depression and ultimately substance abuse to deal with these emotions.

Emotional numbing symptoms of PTSD may include diminished empathy for the victim, lack of remorse, and difficulties appreciating the severity and consequences of one’s behaviors. Furthermore, while many veterans attempt to escape and avoid distressing and trauma related thoughts, images, and negative emotions, this suppression increases sympathetic activation, ultimately making it more difficult for veterans to regulate and control emotions when they are triggered.38 It is imperative for the forensic expert and attorney to appreciate how PTSD is specifically related to emotional and behavioral dysregulation as an underlying mechanism of impulsive aggression.39 Veterans with PTSD have heightened neural and physiological responses to both trauma-related and neutral stimuli, indicating they have difficulties distinguishing between safe and potentially unsafe (trauma-related) people and places.40 Unfortunately, many veterans return from deployment and continue to interpret environmental events and people as dangerous, unsafe, and threatening, and their emotional regulation resources are overtaxed, and emotions may be difficult to control.41 The condition of PTSD places a veteran at risk to be in a state of hyper-aroused activation and to misperceive an environmental event as stressful and threatening leading them to react in an impulsive and

October 2020 8 VOICE FOR THE DEFENSE 33

aggressive manner.

PTSD symptoms are particularly relevant for understanding violence risk.42 Re-experiencing symptoms such as flashbacks have some connection with aggression.

They stress the dissociative nature and detachment from reality that may be involved with violence as a sufferer of PTSD may commit an act of aggression while reexperiencing the trauma. In fact, re-experiencing and flashback-type symptoms recently have been reported to be positively related to aggressive or impulsive behavior.43 Numbing symptoms and avoidance may also be strong predictors of violence.44 Escape avoidance and emotionally distancing from others have been shown to be positively related to aggression and hostility. Excitation and hyperarousal response-like symptoms are also related to violence.45 Those with PTSD are typically physiologically aroused and will have an intensified state of anger and aggression.

Physical reactions to triggers from the trauma including elevated heart rate, sweating, and physical tension are related to a high rate of aggression. Hypervigilance and paranoia, even to a level of psychosis, are not uncommon. Hyperarousal and dissociation type psychotic symptoms may place an individual at risk for aggression due to the connection of paranoia and threat/control override symptoms that appear in psychotic disorders. Misperceived threats and paranoia are significant to a risk of violence.

When considering neuropsychological aspects of the cognition of PTSD and risk for violence, it is noted that the need for physiological arousal and stimulation may lead to reckless and aggressive behavior. Many combat veterans return to the U.S. and have become accustomed to the variability in stress, action, and stimulation that combat brings them. This heightened stimulation changes the structure and function of the brain in areas critical to impulse control. Ultimately, they return to the U.S. with a “need for speed” in that their brain’s structure and functioning has changed, and they crave stimulation and arousal that they have been accustomed to in war and are prone in reacting recklessly and impulsively.

TBI and Violence

Traumatic brain injury is a complex injury resulting from an external force that often results in a change in brain function. Aggression is a common neuropsychiatric sequelae of TBI, and again a relationship between TBI and aggression has been found in veterans.46 A recent neuroimaging study found a difference between men and women with TBI and aggression, such that male veterans with TBI reported significantly more physical aggression, revenge planning, and urges to engage in physical violence.47 Acute post-concussive aggression and violence is often referred to as behavioral dyscontrol (including hesitation, impulsivity, disinhibition, restlessness, irritability, mood lability, and explosive behavior).

Posttraumatic aggression is often reactive in nature

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pertaining to the organic aggressive syndrome which describes aggressive behavior that is reactive and typically provoked, even by trivial stimuli. Such aggression is nonreflective, unplanned, non-instrumental with no clear objective, and is typically impulsive, explosive, occurring acutely without buildup, and is often egodystonic in nature in that the individual did not intend on the violent act, it was more impulsive, and the offender feels bad about their behavior.48 In contrast, posttraumatic aggression may also be considered as instrumentally objective in motive, being purposeful but unplanned, such as responding to perceived threat or acting in self-defense. Both types of aggression are consistent with TBI and PTSD. The neuroanatomy of aggression considering traumatic brain injury includes primarily the frontal and temporal lobes, which are susceptible to injury and damage from contact and forces to which the brain is subjected during biochemical trauma.49 Traumatic brain injury is known to tear, shear, and strain brain neurons and injure white matter in a number of important areas that relate to brain behavior function, including potentially most importantly, executive functioning.

The frontal lobes are the last area of the brain to develop and are crucial in higher order cognitive processes pertaining to the regulation of emotion and behavior.

Critical areas of the prefrontal cortex are responsible for executive functioning pertaining problem solving, planning, sequencing and processing information, abstraction, considering of consequences, judgment, inhibition, learning from punishment and considering behavioral risk and reward, and empathy for example. Biochemical neurotransmitters of the brain in the frontal lobe areas may be negatively altered and are related to mediation and balance of cognition and emotional behavior.50 Neuropsychological components of violence in veterans, deficits in information processing and the activation of highly arousing emotional memory networks associated with combat trauma leave veterans at risk for aggression. Response information as part of an activated memory structure toward perceived threat can trigger a survival mode of functioning which can include aggressive responding. Many veterans experience an arousal regulation deficit in which they cannot regulate their psychophysiological arousal and are at risk for physical acting out when feeling threatened.51

PTSD, TBI, the Brain, and Violence

When considering both PTSD and TBI and neuropsychological functioning, studies of aggression and violent behavior are focused primarily on the frontal, prefrontal, and temporal brain regions.

Prefrontal regions are involved in modulating and controlling emotional interpersonal behaviors and

inhibiting temporal lobe areas especially the amygdala and other limbic regions involved in expression of aggressive drives.52 Research has revealed that PTSD and persistent postconcussive symptoms from TBI are related to most forms of partner and non-partner aggression.53 In another study, veterans with TBI and concurrent anger/irritability were more likely to be arrested than those with TBI but without concurrent anger and irritability.54 Furthermore, veterans with history of PTSD and/or TBI are at risk for volumetric measures of brain magnetic resonance imaging (MRI) with decreased hippocampal and amygdala (limbic system) volumes compared to controls as well as reduced blood flow in the frontal (executive) and temporal areas. All these brain regions are critical in neurocognitive functioning related to memory formation, executive functioning, emotional and behavioral dysregulation, and violence.

A recent study looked at long term associations among PTSD symptoms, traumatic brain injury, and neurocognitive functioning in Army soldiers deployed to the Iraq war.55 They found that increases in PTSD symptom severity at different intervals post-deployment were associated with poor verbal and/or visual recall and memory at the end of each interval and less efficient reaction time at post-deployment. Traumatic brain injury was associated with adverse PTSD symptom outcomes at both postdeployment and long-term follow-up. The authors found that longitudinal and long-term relationships among PTSD symptoms, TBI, and neurocognitive decrements may be due to sustained emotional and neurocognitive symptoms over time.

Importantly, PTSD should be considered as a neurobiopsychosocial disorder involving alterations in neural and brain functioning. PTSD may erode and break down potentially resilient enhancing cognitive resources such as learning and memory as the PTSD symptoms increase in severity. The more severe the PTSD condition is, the more likely it will lead to neurocognitive and emotional impairments. Additionally, having a history of traumatic brain injury also will aggravate PTSD symptomatology.

In another recent study, the author researched variables explaining cognitive complaints among OEF/OIF/OND veterans with a remote history of blast-wave mild traumatic brain injury.56 Despite good prognosis with mild TBI, at least a third of veterans with a history of mild TBI reported post-concussive symptoms inclusive of cognitive complaints.

While veterans typically rated executive functioning prior to deployment as intact, over 80% rated their post mild TBI executive function problems as clinically significant. The authors found that current PTSD symptoms were associated with self-reported decline in executive functioning. While veterans often will rate their neurocognitive functioning as significantly impaired post head injury, even with intact neuropsychological testing results, the neurocognitive complaints are often subsumed within the symptoms of

PTSD, since PTSD symptoms typically account for most of the perceived and functional neurocognitive decline in veterans.57 The prevalence of traumatic brain injury in offender populations is quite significant and prison studies consistently indicate that approximately 50% of offenders have self-reported histories of traumatic brain injury with evidence of loss of consciousness.58 Similarly, the prevalence of posttraumatic stress disorder is quite high in the offender population, with up to 27% for male and 38% for female prison populations having the disorder.59 It should be noted that many servicemen who experience mild TBI also experience PTSD and neurocognitive deficits may stem from both, but they are more consistently accounted for through the PTSD lens.

Veterans are at risk for a number of mental health problems such as PTSD, alcohol and drug abuse, head injuries, and there is a cumulative risk to violence with the collection of those disorders affecting one’s cognitive, emotional, and behavioral functioning. Imperative to the assessment of active military and veterans in relationship to risk and violence, veterans are at jeopardy for a number of mental health concerns and polytrauma. The polytrauma combination of PTSD, TBI, pain intensity, as well as substance abuse and major depressive disorder leave veterans at serious risk for suicidality, violence, and homicidality.60 While it is vital for the forensic expert to have a good handle on risk factors for violence in veterans, they also must have an appreciation of the protective mechanisms relevant to the prevention of violence and aggression in veterans.61 Many of these factors include steady work, resilience, social support, report of no physical pain, ability for self-care, healthy sleep, perceived self-determination, and having needs met. Therefore, emphasis on VA rehabilitation programs and interventions to reduce homelessness, retrain veterans for civilian work, enhance financial literacy, and improve social supports are likely to reduce violence among veterans. Obviously, many veterans have a multitude of risk factors and therefore require a variety of rehabilitative efforts.

Fight/Flight

The fight/flight sensory perception>emotional>and behavioral response system is critical to the veteran who has PTSD and or TBI history and their legal defenses.

Humans, like all species, have self-protective mechanisms to help us survive. Our fight/or/flight response system is based on a survival mechanism that allows people to react quickly to acute life-threatening situations and is designed to mobilize our brain and body to fight an enemy, run from an avalanche, or freeze to hide from a predator.

There are a host of hormonal and neurophysiological affects and responses that interact to assist someone in fighting the threat or fleeing to safety.

Our brain sometimes misinterprets safe situations as

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dangerous and can set off false alarms. When the amygdala, our brain’s watch dog, senses danger, our body enters survival mode quicker than our rational mind can react, trying to figure out why we feel in mortal danger.

Individuals with chronic PTSD and/or traumatic brain injuries can misperceive and overreact to stressors that may not be life threatening. The heart of the limbic and emotional system of the brain is the amygdala, which plays significant roles in emotional responses (fear, anxiety, and depression), as well as development of emotional memories and decision making. It is essentially an alarm system that processes threat and danger.62 In distress it sends a message to the hypothalamus, which is a command center of the brain.

When considering the brain structure and function in the fight/flight response system, the hypothalamus of the brain as a command center that communicates with the rest of the body through the automatic nervous system (sympathetic and parasympathetic nervous systems). The sympathetic nervous system functions as if it was a gas pedal in the car triggering the fight or flight response leading to heightened arousal to perceived dangers while the parasympathetic nervous system is the brakes and is described as the “resting and digesting” response system that calms the body down after the danger leaves. There are a number of hormones that are active in this alarm, gas, and brake system.

Many military veterans and criminal defendants in general have evidence of PTSD and traumatic brain injuries, and chronic substance use and intoxicated states at the time of violent offenses that compromise and haywire this fight/ flight threat response neuropsychiatric system. There may be a number of symptoms and functional impairments that forensic psychological and neuropsychological examinations can detect regarding the psychiatric diagnoses and brain injuries that must be explored in the context of the situation, environment, and perception of the defendant at the time of their aggressive act.

Both PTSD and TBI symptoms and impairments can lead to a dysfunctional brain. Emotional trauma through PTSD and traumatic brain injuries can place a brain at risk for an overstimulated amygdala and highly alert system perceiving threat everywhere, along with a damaged and dysfunctional frontal lobe system that impedes proper executive functioning regarding problem solving, planning, appreciation of consequences, and impulse control for example. Unfortunately, substances such as methamphetamine, alcohol, and other drugs critically affect brain reward systems that are in part the same areas that are affected and damaged by PTSD and TBI.63 Therefore, there often is a triple threat in violent offense cases regarding PTSD and trauma, brain dysfunction, and the acute and chronic effects of substance use.

Part II of this article in the next edition of the Voice will address forensic psychological and neuropsychological evaluations in military cases with PTSD and TBI. I will

36 VOICE FOR THE DEFENSE 8 October 2020

examine legal defenses that may be applicable in state and federal cases as well as mitigation and treatment issues with the veteran.

Endnotes

1. Taber, K., & Hurley, R. (2010). OEF/OIF Deployment Related Traumatic Brain Injury. National Center for PTSD. Vol. 21(1).

2. Garneau, M. R., Woodruff, S. I., Dye, J. l., Mohrle, C. R., & Wade, A. L. (2008). Traumatic brain injury during Operation Iraqi Freedom: Findings from the United States Navy-Marine Corps Combat Trauma Registry.

Journal of Neurosurgery, 108, 950-957.

3. Okie, S. (2005). Traumatic brain injury in the war zone. New England Journal of Medicine, 352, 2043-2047.

4.

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6. Hoge, C. W., McGurk, D., Thomas, J. l., Cox, A. l., Engel, C. C., & Castro, C. A. (2008). Mild traumatic brain injury in U.S. soldiers returning from Iraq. New England Journal of Medicine, 358, 453-463. Schwab, K. A., Ivins, B., Cramer, G., Johnson, W., Sluss-Tiller, M., Kiley, K. et al. (2007).

Screening for traumatic brain injury in troops returning from deployment in Afghanistan and Iraq: Initial investigation of the usefulness of a short screening tool for traumatic brain injury. Journal of Head Trauma Rehabilitation, 22, 377-389.

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McCrae, M. Mild traumatic brain injury and post concussion syndrome. The new evidence base for diagnosis and treatment. New York: Oxford University Press (2008), 9.

Terrio, H., Brenner, l. A., Ivins, B. J., Cho, J. M., Helmick, K., Schwab, K. et al. (2009). Traumatic brain injury screening: Preliminary findings in a US Army Brigade Combat Team. Journal of Head Trauma Rehabilitation, 24, 14-23.

10. Taber, K., Warden, D., Hurley, R. (2006). Blast-related traumatic brain injury: What is known? The J. of Neuropsychiatry and Clinical Neurosciences, Vol. 18, 141-145 11. Belanger HG, Kretzmer T, Yoash-Gantz R, Pickett T, Tupler LA.(2009). Cognitive sequelae of blast-related versus other mechanisms of brain trauma. J Int Neuropsychol Soc. 2009 Jan;15(1):1-8.

12. (American Psychiatric Association, 2013) 13. Scott et al. The Quantitative Meta-Analysis of Neurocognitive Functioning. Psychological Bulletin. 2015. Vol. 141, num 1. 105-140 14. Ford, J., Chapman, J., Connor, D., & Cruise, K. (2007). Complex trauma and aggression in secure juvenile justice settings. CRIMINAL JUSTICE AND BEHAVIOR, Vol. 39, No. 6, June 2012, 694-724 15. Hoge CW, McGurk D, Thomas JL, Cox AL, Engel CC, Castro CA: Mild traumatic brain injury in US soldiers returning from Iraq. N Engl J Med 2008; 358:453–463 16. McDermott, W. F. (2012). Understanding combat related posttraumatic stress disorder. Available from http://www.eblib.com 17. Hourani, Laurel L.; Williams, Jason; Lattimore, Pamela K.; Trudeau, James V.; Van Dorn, Richard A. Psychological Model of Military Aggressive Behavior: Findings From Population-Based Surveys.

18. Hoge, C.W., Castro, C.A., Messer S.C., McGurk, D. Cotting, D.I. & Koffman, R.L. (2004). Combat duty in Iraq and Afghanistan, mental health problems, and barriers to care. New England Journal of Medicine, 351, 13-22.

19. Parry-Jones, B. L., Vaughan, F. L., & Miles Cox, W. (2006). Traumatic brain injury and substance misuse: A systematic review of prevalence and outcomes research (1994 –2004). Neuropsychological Rehabilitation, 16, 537–560. http://dx.doi.org/10.1080/09602010500231875.

20. Unsworth, DJ. Traumatic Brain Injury and Alcohol/Substance Abuse/A Bayesian Meta-Analysis Comparing the Outcomes of People Without a History of Abuse. Journal of Clinical and Experimental Neuropsychology. 9 Nov 2016, 39(6):547-562 21. The Neurobiology of Substance Use, Misuse, and Addic-

tion. 2016. https://addiction.surgeongeneral.gov/sites/default/files/chapter-2-neurobiology.pdf 22. Elbogen, EB & Johnson, Sally. Criminal Justice Involvement of Trauma and Negative Affect in Iraq and Afghanistan War Era Veterans. Journal of Consulting and Clinical Psychology. (2012) Vol. 80, No. 6, 1097–1102.

23. Bigler ED: Neuropsychology and clinical neuroscience of persistent post-concussive syndrome. J Int Neuropsychol Soc 2008;14:1–22 24. Sbordone, R.J., Saul, R.E., & Purisch, A.D. (2007). Neuropsychology for psychologists, health care professionals, and attorneys (Third Edition). Boca Raton, Florida, CRC Press.

25. Vasterling JJ, Duke LM, Brailey K, Constans JI, Allain AN, Sutker PB. Attention, learning, and memory performances and intellectual resources in Vietnam veterans: PTSD and no disorder comparisons. Neuropsychology. 2002 Jan; 16(1):5-14.

26. Isaac CL, Cushway D, Jones G. (2006). Is posttraumatic stress disorder associated with significant deficits in episodic memory. Clin Psychol Rev. 2006 Dec;26(8):939-55.

27. Elbogen, E. B., Johnson, S. C., Wagner, H. R., Sullivan, C., Taft, C. T., & Beckham, J. C. Violent Behaviour and Post-traumatic Stress Disorder in US Iraq and Afghanistan Veterans. British Journal of Psychiatry, (2014) 204, 368–375. http://dx.doi.org/10.1192/bjp.bp. 113.134627.

28. Blakey, Shannon M.; Wagner, H. Ryan; Naylor, Jennifer; Brancu, Mira; Lane, Lane, Sallee, Meghann; Kimbrel, Nathan. VA Mid-Atlantic MIRECC Workgroup, and Eric B. Elbogen. Chronic Pain, TBI, and PTSD in Military Veterans: A Link to Suicidal Ideation and Violent Impulses? Department of Psychology and Neuroscience, University of North Carolina at Chapel Hill, Chapel Hill, North Carolina. Veterans Affairs Mid-Atlantic Mental Illness Research, Education and Clinical Center, Durham, North Carolina. ‡ Durham VA Medical Center, Durham, North Carolina. § Department of Psychiatry and Behavioral Sciences, Duke University Medical Center, Durham, North Carolina.

29. Elbogen, E. B., Johnson, S. C., Wagner, H. R., Sullivan, C., Taft, C. T., & Beckham, J. C. Violent Behavior and Post-traumatic Stress Disorder in US Iraq and Afghanistan Veterans. British Journal of Psychiatry, (2014) 204, 368–375. http://dx.doi.org/10.1192/bjp.bp. 113.134627 30. Gallaway, M.S., Fink, D.S., Millikan, A.M., & Bell, M.R. (2012).

Factors associated with physical aggression among US army soldiers. Aggressive Behavior, Vol 38, 357- 367.

31. Thomas JL, Wilk JE, Riviere LA, McGurk D, Castro CA, Hoge CW. 2010. Prevalence of mental health problems and functional impairment among active component and national guard soldiers 2 and 12 months following combat in Iraq. Arch Gen Psych 67:614– 623.

32. Bohannon JR, Dosser DA, Eugene LS. 1995. Using couple data to determine domestic violence rates: An attempt to replicate previous work.

Violence Vict 10:133–141. Heyman RE, Neidig PH. 1999. A comparison of spousal aggression prevalence rates in U.S. Army and civilian representative samples. J Consult Clin Psych 67:239–242 33. Protective Mechanisms and Prevention of Violence and Aggression in Veterans Eric B. Elbogen University of North Carolina-Chapel Hill and the Durham VA Medical Center, Durham, North Carolina Sally C. Johnson and Virginia M. Newton University of North Carolina-Chapel Hill Christine Timko VA Palo Alto Healthcare System, Palo Alto, California and Stanford University School of Medicine Jennifer J. Vasterling VA Boston Healthcare System, Boston, Massachusetts and Boston University School of Medicine Lynn M. Van Male VHA Office of Public Health and Oregon Health & Sciences University H. Ryan Wagner and Jean C. Beckham Durham VA Medical Center, Durham, North Carolina, MidAtlantic Mental Illness Research Education and Clinical Center, Durham, North Carolina, and Duke University Medical Center.

34. Elbogen, E. B., Johnson, S. C., Wagner, H. R., Sullivan, C., Taft, C. T., & Beckham, J. C. Violent Behaviour and Post-traumatic Stress Disorder in US Iraq and Afghanistan Veterans. British Journal of Psychiatry, (2014) 204, 368–375. http://dx.doi.org/10.1192/bjp.bp. 113.134627.

35. Freeman, T., Roca, V. (2001). Gun use, attidudes toward violence, and aggression among combat veterans with chronic posttraumatic stress disorder. Journal of Nervous and Mental Disease, 189(5)317-320.

36. McFall, M., Fontana, A., Raskind, M., Rosenheck, R. (1999).

Analysis of violent behavior in Vietnam combat veteran psychiatric inpatients with posttraumatic stress disorder. Journal of Traumatic Stress,12(3), 501-517.

37. Blonigen, D. M., Bui, L., Elbogen, E., Blodgett, J. C., Maisel, N. C., Midboe, A. M., et al. (2016). Risk of recidivism among justice-involved veterans: A systematic review of the literature. Criminal Justice Policy Review, 27(8), 812–837.

38. Greenberg GA, Rosenheck RA. Jail incarceration, homelessness, and mental health: a national study. Psychiatr Serv. 2008;59(2):170‐177 39. Sullivan CP, Elbogen EB. PTSD symptoms and family versus stranger violence in Iraq and Afghanistan veterans. Law Hum Behav.

2014;38(1):1‐9 40. Roberton, T., Daffern, M., & Bucks, R. S. (2012). Emotion Regulation and Aggression. Aggression and Violent Behavior, 17, 72–82. http:// dx.doi.org/10.1016/j.avb.2011.09. 006.

41. Chemtob, C. M., Novaco, R. W., Hamada, R. S., & Gross, D. M. (1997). Cognitive-behavioral treatment for severe anger in posttraumatic stress disorder. Journal of Consulting and Clinical Psychology, 65, 184–189.

42. Fabian, J. (2010). Neuropsychological and neurological correlates in violent and homicidal offenders: A legal and neuroscience perspective. Aggression & Violent Behavior, Vol. 15(3), 209-223.

43. Shiroma, E., & Pickelsimer, E. (2010). Prevalence of traumatic brain injury in an offender population: a meta - analysis. J. Correct Health Care, Vol. 16(2), 147-159.

44. VA/DoD Clinical Practice Guideline and Management of Posttraumatic Stress. Department of Veterans Affairs, Department of Defense 45. Miles, Shannon R.; Sharp, Carla; Teten Tharp, Andra; Standford, Matthew S.; Stanley, Melinda; Thompson, Karin E.; Kent, Thomas A. Emotion Dysregulation as an Underlying Mechanism of Impulsive Aggression: Reviewing Empirical Data to Inform Treatments for Veterans who Perpetrate Violence.

46. Weber, D. L. (2008). Information Processing Bias in Post-traumatic Stress Disorder. Open Neuroimaging Journal, 2, 29–51. http://dx.doi. org/10.2174/1874440000802010029.

47. Roberton, T., Daffern, M., & Bucks, R. S. (2012). Emotion Regulation and Aggression. Aggression and Violent Behavior, 17, 72–82. http:// dx.doi.org/10.1016/j.avb.2011.09. 006.

48. Sullivan CP, Elbogen EB. PTSD symptoms and family versus stranger violence in Iraq and Afghanistan veterans. Law Hum Behav.

2014;38(1):1‐9; Hellmuth JC, Stappenbeck CA, Hoerster KD, Jakupcak M. Modeling PTSD symptom clusters, alcohol misuse, anger, and depression as they relate to aggression and suicidality in returning U.S. Veterans. Journal of Traumatic Stress. 2012;25(5):527–534.

49. Friel A, White T, Hull A. Posttraumatic stress disorder and criminal responsibility. J Forensic Psychiatry Psychol 19: 64-85, 2008 50. McFall ME, Wright PW, Donovan DM, Raskind M. Multidimensional assessment of anger in Vietnam veterans with posttraumatic stress disorder. Compr Psychiatry. 1999;40(3):216‐220.

51. Sullivan CP, Elbogen EB. PTSD symptoms and family versus stranger violence in Iraq and Afghanistan veterans. Law Hum Behav.

2014;38(1):1‐9 52. Mendez, Anthony; Owens, M.F.; Jimenez, E.E.; Peppers, D.; Licht, E.A. Changes in Personality after Mild Traumatic Brain Injury from Primary Blast vs. Blunt Forces. Brain Injury, 27, 10–18 53. McGlade, E., Rogowska, J., & Yurgelun-Todd, D. (2015). Sex Differences in Orbitofrontal Connectivity in Male and Female Veterans with TBI. Brain Imaging and Behavior, 9, 534–549.

54. Silver, JM. Pharmacotherapy of Post-Traumatic Cognitive Impairments. Behav Neurol. 17:25-42, 2006 55. Douglas, David. Neuroimaging of Traumatic Brain Injury.

Medical Sciences, 2019, 7, 2-19 56. Arciniegas DB, Topkoff J, Silver Jm. Neuropsychiatric Aspects of Traumatic Brain Injury. Curr Treat Options Neurol 2:169–86, 2002 57. Chemtob, C. M., Novaco, R. W., Hamada, R. S., & Gross, D. M. (1997). Cognitive-behavioral treatment for severe anger in posttraumatic stress disorder. Journal of Consulting and Clinical Psychology, 65, 184–189.

58. Morris, D. H., Spencer, R. J., Winters, J. J., Walton, M. A., Friday, S., & Chermack, S. T. (2019). Association of persistent postconcussion symptoms with violence perpetration among substance-using veterans. Psychology of Violence, 9(2), 167–176.

59. Vasterling, J. J., Jacob, S., Rasmusson, A. (2018). Traumatic brain injury and posttraumatic stress disorder: Conceptual, diagnostic, and therapeutic considerations in the context of co-occurrence. Journal of Neuropsychiatry and Clinical Neurosciences, 30(2), 91-100.

60. Elbogen, EB & Johnson, Sally. Criminal Justice Involvement of Trauma and Negative Affect in Iraq and Afghanistan War Era Veterans. Journal of Consulting and Clinical Psychology. (2012) Vol. 80, No. 6, 1097–1102.

61. Vasterling JJ, Aslan M, Lee LO, et al. Longitudinal Associations among Posttraumatic Stress Disorder Symptoms, Traumatic Brain Injury, and Neurocognitive Functioning in Army Soldiers Deployed to the Iraq War. J Int Neuropsychol Soc. 2018;24(4):311-323.

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62. Karr, Justin. What Variables Explain Cognitive Complaints Among OEF/OIF/OND Veterans with a Remote History of Blast-Related Mild Traumatic Brain Injury.

The Score. April 2019 63. Brenner, L. A., Ivins, B. J., Schwab, K., Warden, D., Nelson, L. A., Jaffee, M., & Terrio, H. (2010). Traumatic brain injury, posttraumatic stress disorder, and

postconcussive symptom reporting among troops returning from Iraq. The Journal of Head Trauma Rehabilitation, 25(5), 307-312. https://doi.org/10.1097/HTR. 0b013e3181cada03

John Matthew Fabian is a board-certified forensic and clinical psychologist and clinical neuropsychologist. His Texas-based practice performs evaluations nationally for cases involving competency, insanity, self-defense, death penalty, and juvenile homicide, among other issues. Dr. Fabian has also worked as a clinical neuropsychologist at the University of New Mexico School of Medicine Center for Neuropsychological Services and Veteran’s Administration Polytrauma Traumatic Brain Injury and PTSD Unit and regularly conducts forensic neuropsychological evaluations with both active duty military and veterans. He can be reached at john@johnmatthewfabian.com and 512487-7216 and 216-338-6462.

Veterans and Violence Pt. 2:

Forensic Psychological and Neuropsychological Evaluations of Veterans with PTSD and TBI

By John Matthew Fabian Legal applications and implications Part I of this article was run in the October 2020 issue. Part II of this article focuses on the application of forensic psychological and neuropsychological evaluation to veterans with PTSD and TBI. Forensic neuropsychology is defined as the application of neuropsychological assessment and the examination of brain behavior relationships to criminal or civil litigants. Forensic neuropsychologist experts provide reliable valid assessment and data about the relationship between neurocognitive dysfunction and neuropathology and the behavioral and/or cognitive issues related to legal questions in court proceedings.

Neuropsychological assessment is very sensitive to brain function and dysfunction and can be helpful in determining forensic/legal issues. Similarly, the forensic psychologist examines psychological and psychiatric functioning of an individual and applies this clinical assessment to forensic and legal issues.

The forensic neuropsychologist who also practices as a forensic psychologist will often integrate a nexus between psychological and neuropsychological brain function/dysfunction, psychiatric diagnosis, and specific symptoms to the violent act.

In addition to the forensic neuropsychological assessment of veterans to examine brain function and dysfunction, the forensic neuropsychologist will often assist in integrating their brain behavior data with neuroimaging. Structural and function neuroimaging is useful in further assessing the specific locations of the brain that may be low in volume and density. In these cases, the PTSD and TBI conditions and their effects on an individual’s neuropathology are often cited in the limbic system and amygdala and hippocampus as well as the prefrontal cortex. Ideally, the neuropsychological assessment will be correlated with the neuroimaging findings (executive functioning deficits in the prefrontal cortex and attention, memory, and behavioral dysregulation, attention, and paranoia in the limbic system).

The forensic neuropsychological assessment in veterans in criminal cases may include the following legal referral questions:

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1. Competency to stand trial 2.Not guilty by reason of insanity 3.Diminished capacity 4.Voluntary intoxication and diminished capacity 5. Self-defense 6. Mitigation for plea negotiation and/or sentencing 7. Issues relating to future dangerousness, lack thereof, and violence and sexual violence risk assessment and risk management I will address some of these forensic legal issues concerning veterans, PTSD, and TBI below.

The forensic neuropsychological assessment of veterans may ultimately focus on the prevalence and cumulative impact of co-occurring neuropsychological and psychiatric conditions including PTSD, TBI, depression, and substance intoxication/ addiction on the veteran’s mental state at the time of the violent act(s). The forensic neuropsychologist may also offer valuable insight into the complex emotional, behavioral, and neuropsychological effects and function of brain injury and PTSD in relation to a veteran’s propensity for violence.

Issues related to behavioral dyscontrol, impulsivity, dissociation, paranoia, suicidality, and intoxication are germane to both TBI, PTSD, and other comorbid conditions that are prevalent with intense combat related military service.

Three major areas of forensic assessment with TBI and PTSD in military related criminal justice cases include diminished capacity, self-defense, insanity, and mitigation. Essentially, all these forensic referral questions address the defendant’s mental state at the time of the offense.

Diminished Capacity In military cases, the effects of TBI and or PTSD on one’s emotional, behavioral, and cognitive functioning can be applied to the mens rea elements of a violent crime.

Diminished capacity in criminal cases is typically recognized as whether the defendant, due to mental disease and/or defect, had the capacity to form the requisite mental state constituting a crime. This proposition is supported by opinions issued from the Courts of Appeal.

In Jackson v. State,1 diminished capacity was presented as a failure-of-proof claim. The prosecution failed to prove that the defendant had the required state of mind at the time of the offense. To counter the prosecution’s evidence of the defendant’s culpable state of mind, the defense may present evidence that the defendant has mental or physical impairments or abnormalities and that some of his abilities are lessened in comparison to someone without such problems.

Evidence of mental disease or defect that directly rebuts a particular mens rea necessary for the charged offense can be

presented by either lay or expert witnesses. In Lizcano v. State,2 the Court recognized diminished capacity with mental health testimony only if it negates any mens rea element. The defense must make a showing of a connection between the defendant’s psychological and neuropsychological functioning and how impairments could negate a mens rea element.

In Lizcano, the defendant was charged with the offense of capital murder in the shooting death of a police officer. During trial, the trial court excluded evidence related to the defendant’s mental health. On appeal, the defendant argued that the excluded mental health testimony was relevant as to whether, because of mental disease or delusion, the defendant believed he was not shooting at a uniformed police officer. He further argued that evidence of how paranoid delusions may distort a person’s auditory and visual perceptions is admissible as it relates to the defendant’s intent to shoot a police officer. The Court found there was no suggestion in the trial record that the excluded testimony had anything to do with delusions. Instead, the court concluded the excluded testimony suggested general limitations in cognitive ability and intoxication at the time of the offense as well as general deficits in adaptive functioning.

The excluded testimony had relevance only as to whether the defendant’s mental functioning was below normal to some degree. There was no evidence showing a connection between the defendant’s generally low level of mental functioning and his knowledge during the commission of the offense that the victim was a police officer.

In State v. Ruffin,3 Ruffin was charged with aggravated assault after shooting at police officers. At the time of the shooting, he believed the officers were trespassers and Muslims rather than police officers. At trial, the psychologist for the defense testified that Ruffin suffered from delusions and opined that he was suffering from psychotic symptoms such as auditory and visual hallucinations at the time of the offense. The trial court found the testimony of the psychologist was relevant and admissible to rebut the mens rea element of the offense. In essence, the Court emphasized that any expert testimony regarding diminished capacity and mens rea issues during the guilt and innocence phase of the trial must not only focus on mental illness, psychiatric symptoms, level of functioning, and possible brain damage and dysfunction, but there must also be a showing of how those symptoms and impairments specifically negate the defendant’s mens rea.

Similarly, in Nikmanesh v. State,4 the Court of Appeals found the trial court did not err in excluding psychiatric evidence where expert testimony concerning the defendant’s behavior, depressive disorder, and obsessive-compulsive disorder could only offer an explanation or motive for his actions but could not negate intent for an offense of murder.

Ultimately, diminished capacity mental health testimony not directly rebutting intent will not be admitted in Texas courts.5 An expert witness in a case where PTSD and TBI are present must not only present testimony on symptoms of psychiatric disorder and neurocognitive impairments of brain disorder but apply this information to the defendant’s incapability of forming intent to commit the act or incapability of acting with

knowledge of their conduct and its consequences.6 Presenting expert testimony only on symptoms, conditions, diagnoses, and impairments without applying this data to the defendant’s mental state at the time of the offense(s), and specifically to their intent, will not be permitted.

Information as to mitigating mental state evidence of PTSD and/or TBI in military and civilian cases can assist the trier of fact in appreciating the defendant’s mental state and history. In many violent murder and assault cases defendants have a profound history of abuse, neglect, early trauma, and complex trauma suffered through childhood, histories of psychiatric disorders, and dual-diagnostic disorders with chemical dependency and addiction. The military servicemen and women who commit violent crimes often have these same traumatic and dysfunctional histories, but they also may have military trauma histories related to PTSD and brain injury.

Additionally, in cases with genuine military-based trauma often suffered and acquired through combat, the trier of fact may recognize mitigating factors regarding service to country.

Reporting this trauma through presentation of forensic expert reports is also bolstered by providing the trier of fact with VA and military records which may provide even more legitimacy of the trauma.

Case Studies In a case of diminished capacity, this author examined a 22-year-old non-military defendant charged with two counts of aggravated assault of a public servant with a deadly weapon and evading arrest/detention in a motor vehicle. The defendant’s father had a traumatic brain injury causing him severe anger problems, and he physically abused the defendant. The defendant also had prior acts of violence towards family members.

The defendant suffered from a childhood history of ADHD and early behavioral problems, and there were early concerns about autism spectrum disorder. Once he reached adulthood, he was more floridly psychotic with a schizophrenia diagnosis and experienced auditory hallucinations and paranoid delusions.

The evening of the offense, the defendant was paranoid and psychotic and was audio and video recording family members due to his paranoia. Arguing ensued between the defendant and his father and grandfather, and the defendant yelled out that he had to leave because of the demons. He ran out of the house, got into a car, and started driving in an acute psychotic state.

The family had called 911, and the police responded immediately. The defendant was driving erratically, and the officer perceived the defendant driving toward him and felt threatened, attempted to stop the car by moving to the other lane, and utlimately steered his vehicle toward the defendant’s car, ramming it to its halt. The officer got out of the car and grabbed the defendant’s passenger door handle when the defendant failed to follow the officer’s commands. The officer fired his weapon twice as the defendant’s vehicle approached him.

During a 7027 hearing at the guilt/innocence phase of the trial, the author’s testimony addressed the defendant’s mental state at the time of the alleged offense. The defendant was significantly compromised by his mental conditions related to schizoaffective disorder bipolar type, active paranoid delusions,

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auditory hallucinations, PTSD, and ADHD. Also present was the hyperarousal and fight/flight phenomenon. These disorders would impair an individual’s cognitive functioning, ultimate problem solving, and decision-making skills in a time of heightened stress, extreme paranoia, and perceived threat. The testimony was admitted by the court to inform the jury as to how these psychiatric symptoms collectively negated the defendant’s mental state to commit aggravated assault against a police officer.

In another Texas case, this author examined a 61-year-old Vietnam veteran charged with online solicitation of a minor under age 14. He served one tour in Vietnam where he witnessed and experienced significant war-related trauma, and as a result, there was evidence of PTSD and severe alcoholism, depression, and anxiety. The was also evidence of childhood neurodevelopmental disorder. He had treatment and disability through the VA for mental health conditions. He suffered one traumatic brain injury after the war from an assault and another when he was hit by a car. The trial court judge held a 702 hearing and allowed mental health testimony regarding the defendant’s mental state and intent as to following through with solicitation type text messages to a minor girl. Essentially, the author examined and testified to significant brain dysfunction, neurocognitive and neurodevelopmental disorders, coupled with his mental illness and how these disorders in collection compromised his mental state and negated his intent regarding solicitation, as well as testimony regarding his intent in carrying out any type of sexual acts with the victim.

Sudden Passion, Manslaughter, and Criminal Homicide Another area of criminal law where PTSD and TBI evidence may apply is in the defense of criminal homicide (Texas Penal Code §19.01).8 “Criminal Homicide” covers the offenses of Murder (§19.02), Capital Murder (§19.03), Manslaughter (§19.04), and Criminally Negligent Homicide (§19.05).

Pursuant to §19.02, a person commits the offense of murder if he: 1. Intentionally or knowingly causes the death of an individual; 2. Intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes death of an individual; or 3. Commits or attempts to commit a felony, other than manslaughter, and in the course of an in furtherance of the commission or attempt, or in the immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual.

Murder is a first-degree felony with a range of punishment of 5-99 years or Life in the Texas Department of Corrections (TDC). Should the defense prove the defendant acted with “sudden passion” the jury may sentence the defendant as if it were a second-degree felony, which has a range of punishment of 2-20 years in TDC. “Sudden passion” means passion directly caused by and arising out of provocation by the individual killed or another acting with the person killed, which passion arises at the time of the offense and is not solely the result of former provocation.

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Critical to murder cases is an instruction for manslaughter.

Under §19.04, a person commits the offense of manslaughter if he recklessly causes the death of an individual. Mental health and brain behavior-based PTSD and TBI evidence may apply to negate a defendant’s intentionally or knowingly causing the death of an individual. The conditions, symptoms, and impairments of PTSD and TBI apply well with reckless behavior. Per §6.03(c), a person is reckless when they are aware of the risks surrounding their conduct and of the results that could occur but consciously disregard that awareness. Importantly, the risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint. The crime does not require an element of premeditation, intent, or knowledge, only that a person is reckless.

PTSD and TBI can affect several critical domains of functioning at or around the time of violent acts leaving an individual vulnerable to misperceiving provocation, overreacting, and becoming impulsive and reckless in their reactions and behavior. Some of these domains include cognition, emotion, behavior, and physiological arousal. PTSD and TBI can also dramatically affect the way an individual perceives, processes, and responds to people and situations. These conditions place individuals at risk for paranoia, impulsivity, deficient problem solving, and deficits in cool reflection with poor appreciation of consequences.

Critical neural circuitry areas of the brain and in particular, the areas regarding impulse control, learning from experience, problem solving, and decision making are especially susceptible to PTSD and TBI. An individual with PTSD and/or TBI, but especially both together, can misperceive threat and provocation due to a number of issues including paranoia, deficient emotional processing, and behavioral regulation.

Self-Defense Another area of mental state evidence and the law in which psychological and neuropsychological evidence can be considered is self-defense.9 Under Texas Penal Code 9.31, self-defense can be invoked when “a person is justified in using force against another when he believes the force is immediately necessary to protect himself against the other’s use or attempted use of unlawful force.” Self-defense is an affirmative defense, and the defendant bears the burden of production. He must present some evidence of a specific apparent danger and that the use of force or deadly force was reasonable and necessary to avoid the danger.10 The reasonableness of the actor’s belief that force or deadly force is immediately necessary is judged from the standpoint of an ordinary person under the same circumstances as the actor.

A person “has a right to defend from apparent danger to the same extent as he would had the danger been real; provided that he acted upon a reasonable apprehension of danger as it appeared to him at the time.”11 The defense attorney may argue that their client’s PTSD, complex trauma, or TBI related brain damage/dysfunction are circumstances that must be considered by the trier of fact in a self-defense case.

A veteran suffering from PTSD/TBI is at particular risk

to have a compromised fight/flight system. Evidence of complex trauma and PTSD place a veteran at risk to misperceive threat, to be constantly on edge, hypervigilant, and in an overstimulated and impulsive state. Those with TBI often have faulty brakes to balance the impulsive threat response system.

Case Study In a self-defense trial, this author examined a 74-year-old Vietnam veteran charged with murder. The defendant was accused of murdering his neighbor who was also a Vietnam veteran, and with whom for several years, he shared a chronic tumultuous history. The defendant perceived death threats from the neighbor, and on the day of the shooting, he said the victim assaulted him on his own property by punching and striking him multiple times. He also perceived the victim pulling out a weapon (an aluminum cane) and threatening the defendant and yelling that he wished the defendant would die. While the defendant was trying to retreat, the victim continued punching him, which led to a mutual fight. There was a verbal and physical argument over the weapon. While the victim was beating him with the cane, the defendant pulled out a gun and shot and killed the victim. During my examination the defendant said, “When I pulled the trigger I was in fear for my life.”

The defendant had a history of trauma prior to his war experiences which led to his PTSD symptoms. His biological father had a history of alcohol use and abuse and died of cirrhosis of the liver when the defendant was age 6. The defendant then lived in an extremely dysfunctional household with his mother, who had evidence of mental illness, and his grandparents. The defendant only completed ninth grade, and he had problems with school achievement. The defendant served as a combat infantry soldier in both the Korean and Vietnam wars. He completed one tour in Korea and three tours in Vietnam, where he earned a Bronze Star and Purple Heart. During his tours of duty, he suffered severe traumatic stress including being shot at, witnessing people getting killed, killing others in the line of duty, and experiencing traumatic brain injury. The veteran did not receive any assessment or treatment for his PTSD during either war.

When he returned to the United States, he had florid PTSD symptoms and evidence of domestic violence with his wife and extreme difficulties with chronic intrusive memories, flashbacks, and nightmares. He worked as a security guard in a prison where he experienced further trauma and multiple concussions. He qualified for a dual-diagnosis condition as he became an alcoholic when returning from Korea and was chronically drinking until age 65 when finally, he gained sobriety. He received full disability from the VA for PTSD and other medical conditions.

The neuropsychological assessment conducted indicated mild to moderate neurocognitive deficits in several areas including memory, executive functioning, and attention. He qualified for evidence of PTSD, major depressive disorder, and mild to major neurocognitive disorder due to traumatic brain injury and other vascular medical risk factors, as well as the chronic effects of alcohol use on brain functioning.

The court requested a 702 hearing, and the author testi-

fied in this hearing that the defendant was suffering from severe PTSD and a mild to moderate neurocognitive disorder due to traumatic brain injuries and a dementing condition as well as an early neurodevelopmental disorder, and further, that these conditions ultimately affected his mental state at the time of the offense, particularly regarding a self-defense claim.

The trier of fact then must consider evidence relevant to the same circumstances of the actor. Accordingly, the trial court found this author’s testimony admissible as applied to the defendant and agreed that despite the ordinary person standard, the jury should be allowed to specifically hear testimony as to the same circumstances as the actor (defendant’s mental, psychiatric, and neuropsychiatric conditions, evidence of psychiatric symptoms and brain dysfunction that included executive functioning impairments pertaining to problem solving and impulse control ultimately detrimentally impacting his fight/ flight response system).

Insanity Under Texas Penal Code § 8.01, “it is an affirmative defense to prosecution that, at the time of the conduct charged, the actor, as a result of severe mental disease or defect, did not know that his conduct was wrong.” The term “mental disease or defect” does not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.” 12 In Texas, the wrongfulness standard is typically a cognitive knowing standard and does not include the emotional and affective standard used in federal insanity law. Regarding the latter, the Insanity Defense Reform Act (IDRA) of 1984 reads, “at the time of the commission of the acts constituted in the offense, as a result of a severe mental disease or defect, they were unable to appreciate the nature and quality or wrongfulness of their acts.13 This statute does have some potential consideration of affective and emotional states related to mental illness and does remove the volitional component that the American Law Institute (ALI) insanity defense has regarding the defendant lacking the capacity to conform their conduct to the law.14 Both the IDRA and ALI insanity tests open the door to emotional and volitional issues that the typical cognitive “knowing wrongfulness” test lacks.

Due to the narrow cognitive knowing of wrongfulness test, it is difficult to prevail on many insanity defense cases. Typically, an individual who does not know right from wrong will be in a psychotic, manic/psychotic, or demented mental state at the time of the offense. Concerning PTSD, if an individual is in a profound dissociative state with potential evidence of depersonalization and/or derealization, there may be a better chance for an insanity defense. When an individual is dissociating and has recurrent feelings of being detached and dissociated from one’s body mind processes, usually with the feeling of being outside of themselves, including being an observer of one’s life or being detached from one’s body/mind feelings and/or sensations, they may have a compromised capacity in knowing the wrongfulness and illegality of their offenses.

Depersonalization is when an individual feels detached from one’s body, mind, feelings, and/or sensations, while derealization occurs when an individual feels detached from their

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surroundings, such as people, objects, events, and they perceive things as being unreal. When these two symptom clusters of depersonalization and derealization occur together the individual may feel detached from their own self and perceive that things are unreal. These severe dissociative traits are close in replica of a psychotic disorder such as schizophrenia in which an individual has hallucinations or delusions and they lack contact from reality. In essence, the symptoms of depersonalization and derealization may lead an individual to not perceive that they are in contact with reality. Further, in many cases of PTSD, the defendant will suffer from other psychiatric disorders and/or TBI which may have a cumulative effect with the PTSD symptoms on their overall functioning and capacity in knowing the wrongfulness of their acts.

In Kemp v. State,15 a Vietnam veteran shot his wife in bed and pled not guilty by reason of insanity. He stated that he was dreaming of being surrounded by Viet Cong, and this dreaming episode certainly would have been an intrusive symptom of PTSD. The defense did not prevail, and the defendant appealed.

The Wisconsin Supreme Court ordered a new trial in the interest of justice on the single issue of the defendant’s special plea of not guilty by reason of insanity or lack of mental responsibility at the time of the act. The doctor called by the defendant and two court appointed witnesses all testified that the defendant was legally insane, and two doctors called by the state stated they could not form an opinion, while one doctor called for the state testified that he did not have an opinion but that maybe the defendant did lack mental responsibility.

In cases like this, the most ideal insanity case with PTSD should include the defendant experiencing a dissociative traumatic type episode that is reminiscent of a prior trauma experience. A defendant who commits a violent act who is dissociating at the time of the offense would have an enhanced defense if he were perceiving a similar trauma that he had experienced before. In essence, the trauma at the time of the instant offense ideally will be reminiscent of the earlier trauma(s).

In a case closer to home in the Lonestar State, American Sniper Chris Kyle was shot and killed by Eddie Ray Ruth. The defendant was a former Marine who had been given a diagnosis of PTSD and spent time in several hospitals being treated for mental illness and was even prescribed antipsychotic medication. Mr. Ruth also used a not guilty by reason of insanity defense. His defense included his portrayal of being in a psychotic episode when he shot and killed Kyle in Littlefield at a gun range in February of 2013. Ruth’s insanity defense failed, and he was sentenced to life in prison without parole. The failure of the defense was due in part to the defendant’s problems with drugs and alcohol and because the State’s experts opined that he was exaggerating mental illness during the examinations.

Mitigation of Military and Civilian PTSD and TBI Perhaps the most common process of utilizing forensic psychological and neuropsychological evidence of PTSD and TBI in military and non-military civilian cases is through mitigation evaluations/packages provided to the prosecution, court, and/or jury through forensic reports and/or testimony. Mitigating evi-

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dence about a defendant’s background, character, and characteristics of his offense is relevant because, pursuant to “evolving standards of decency” in our society, such factors speak to one’s moral culpability.16 Mitigation evaluations are utilized by the defense to provide the prosecution information outside of the criminal offenses and can be used to educate them as to the defendant’s background history, ultimately relating to moral culpability.

These evaluations often assist the defense in the plea negotiation process.

In the absence of specific direction and guidance from statutes or sentencing guidelines, numerous federal and state decisions have recognized PTSD as a mitigating factor when the offender is a military veteran.

In Porter v. McCollum,17 the United States Supreme Court held that the lawyer’s failure to present evidence of PTSD connected to military service during the sentencing phase of a capital case constituted ineffective assistance of counsel. The Court emphasized the importance of recognizing the defendant’s service to his country, “Our nation has a long tradition of affording leniency to veterans and recognition of their service, especially for those who fought on the front lines.” The Court also associated the concepts of PTSD in military service, “the relevance of…combat experience…is that the jury might find mitigating the intense stress and mental and emotional toll that combat took on the offender.”

Also emphasized, was the importance of the defendant’s military service as a part of a general policy relevant to leniency to war veterans while recognizing the psychological trauma stemming from combat experience, the latter which could have diminished the offender’s capacity to form the requisite intent in committing the crime.

In the United States v. Brownfield,18 a federal judge in a non-capital case sentenced the defendant to five years of probation and ordered a psychiatric evaluation for a military-based PTSD condition and explained that the case involved issues the federal sentencing guidelines do not address regarding the criminal justice system’s treatment of returning veterans who have served in Afghanistan and Iraq.

When considering non-capital federal cases, U.S.S.G. § 5K2.0 allows departure from the sentencing minimums for “extraordinary mental condition.” In federal court, diminished capacity is identified pertaining to a reduced sentencing under the federal sentencing guidelines rather than a formal defense during the guilt/innocence phase of a trial. According to the § 5K2.13 diminished capacity policy statement, it provides for a downward departure if: 1) the defendant committed the offense while suffering from a significantly reduced mental capacity; 2) the significantly reduced mental capacity contributed substantially to the commission of the offense.

Further, the advisory guidelines also note downward departure may be warranted based on military service, U.S.S.G. § 5H1.11-Military service may be relevant in determining whether a departure is warranted, if the military service, individually or in combination with other offender characteristics, is present to an unusual degree and distinguishes the case from the typical cases covered by the guidelines. A downward departure may be pur-

sued pertinent to mental and emotional conditions, U.S.S.G. § 5H.13. According to § 5H.13, mental and emotional conditions may be relevant in determining whether a departure is warranted, as such conditions, individually or in combination with other offender characteristics, present to an unusual degree and that distinguish a case from the typical cases covered by the guidelines.

In certain cases, downward departure may be appropriate to accomplish a specific treatment purpose (this could be related to a veteran obtaining specialized PTSD and/or TBI veteran-based treatment). Mental and emotional conditions could be relevant in determining the conditions of probation with supervised release; e.g., participation in a mental health program. Therefore, there are different avenues in federal court to argue downward departure pertaining to special veteran circumstances.

When returning veterans with no prior criminal history run afoul of the law federal judges have the power pursuant to 18 U.S.C. §3553(a) to structure sentences that facilitate rehabilitation and reintegration.

In United States v. Cantu, 19 the Ninth Circuit held that combat-related PTSD was the type of “mental condition” that would qualify a defendant for a downward departure for “diminished capacity” under U.S.S.G. §5K2.13. The Ninth Circuit had little difficulty concluding that PTSD is a qualifying disorder for “diminished capacity”: Cantu’s post-traumatic stress disorder is a grave affliction. Its effect on his mental processes is undisputed. He has flashbacks to scenes of combat. He suffers nightmares, intrusive thoughts[,] and intrusive images. He is anxious, depressed, full of rage, markedly paranoid, and explosive at times.

The psychologist’s report shows that Cantu’s condition interfered substantially with his ability to make reasoned decisions, causing him to fixate on weapons and rely on them for feelings of personal safety and security. Cantu’s impairment is more than sufficient to make him eligible for a reduction in sentence under §5K2.13.20 The Court went on to explain that “the disorder need be only a contributing cause, not a but-for cause or a sole cause of the offense.” This policy statement, since amended, now requires that the disorder “substantially contribute” to defendant’s commission of the offense. If a departure is warranted under this policy statement, the extent of the departure should reflect the extent to which the reduced mental capacity contributed to the commission of the offense.

This author examined a defendant who was charged in federal court with multiple counts of bank robbery. The defendant graduated from college and served as a front-line medic in the military and experienced/witnessed profound war related trauma, IED blasts, murders, killings, and earned numerous decorated medals from his service in Afghanistan and Iraq. When he returned to the United States, he experienced profound PTSD, major depression, and an inpatient psychiatric hospitalization.

He exhibited significant neuropsychological impairments despite strong verbal and overall IQ scores. He became addicted to opiates, alcohol, and cannabis in addition to his impairments due to PTSD. He also had a history of concussions pre-dating his military service.

Case Study The defendant went on a bank robbery spree and described his motive as to achieve a euphoria and “wanted to feel something” like he felt in Iraq. He did not appear to be planning the offenses, but his motivation was again to achieve a sense of euphoria and rush. There was a disconnect between his emotions, thoughts, and behaviors, which certainly was related to his chronic PTSD condition.

When holding up the bank tellers he lacked an appreciation as to how his behaviors affected others as he focused only on the stimulating, arousing, and inebriating effects that his actions had on him. He had a gun in the bank and said, “It did not seem like a gun or weapon…it was a like a TV remote…I was programmed to not feel emotion due to my war experiences…I eventually did not feel anything…I never considered what I did was really terrorizing anyone.” His impaired ability to feel, regulate, and process his emotions probably led to a diminished empathy for the victims and deficits in feeling remorse as well as a compromised ability to appreciate the severity and consequences of his behaviors.

While he understood the wrongfulness of his behaviors, he had difficulty appreciating the quality of his behaviors pursuant to the Federal Insanity Defense Reform Act (IDRA). In particular, he lacked an emotional appreciation of how his behaviors were affecting others. The defendant had suffered from flashbacks involving alteration of consciousness, and he believed he was re-experiencing a traumatic situation when he was committing the bank robberies. These flashbacks, along with nightmares and intrusive memories, led to heightened emotional stress and to low autonomic activity.

While the defense did not raise an insanity defense, they did focus on his PTSD, major depressive conditions, and the neurocognitive deficits from the PTSD condition that placed him at risk for a diminished ability to choose and completely refrain from his behaviors. He was stimulation-seeking, reckless, impulsive, and found himself escalating these behaviors in frequency closer in time to the arrest.

Despite his intelligence, the veteran’s PTSD condition had altered the functional and neural circuitry of his brain. The neuropsychological assessment revealed significant attention, memory, and executive deficits leaving him impulsive, seeking sensation and intense adrenaline producing experiences with deficits in regulating behavior and appreciating the consequences of his behaviors onto others.21 This defendant was experiencing heightened emotions, including anxiety, fear, guilt, depression, anger, shame, and he would suffer acute emotional reactions when he was exposed to reminders of his wartime traumatic events. Consequently, he utilized drugs to combat and self-medicate these negative emotions focusing his use on opiates to numb his hyper-aroused and traumatic states.

Ultimately, under USSG § 5K2.0 federal law allows departure from the sentencing minimums for “extraordinary mental conditions.”22 The federal district court recognized this forensic psychological and neuropsychological data in the form of a sentencing mitigation package and sentenced him to 108 months

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despite him committing up to 12 bank robberies within a sixweek span.

Brief Neuroscience Admissibility Issues Forensic psychological and neuropsychological assessment, the specific testing and results, and testimony related to forensic legal issues such as first phase mental state evidence and mitigation are typically admissible. Courts will admit evidence deemed “relevant” as defined by Texas Rule of Evidence 401, which states that “Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. However, Rule 403 allows a trial court to exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or by consideration of undue delay, waste of time, or needless presentation of cumulative evidence.

Although forensic psychological and neuropsychological assessment techniques themselves are typically admitted, the application of psychiatric diagnosis, functional neuropsychological and psychological impairments and symptoms, and their relationship to mental state evidence obviously can be contested by legal parties. The defense must be clear in a 702 hearing how mental health evidence, especially diagnostic symptoms and functional impairments, relate to the specific legal issue(s) in mind such as negating intent related to mens rea and diminished capacity or the standard of ordinary person in a self-defense claim. There should be a nexus between the diagnostic symptoms, functional capacity and impairments, and the law.

Neuroimaging While there appear to be more objections to the admissibility of neuroimaging cases in criminal court, neuroimaging evidence can be considered in both PTSD and traumatic brain injury. Neuroimaging in non-murder cases may not be as technically specific and intricate as in murder and death penalty cases in large part due to cost and funding. The most useful neuroimaging techniques include voxel-based morphometry (VBM) (volumetric MRI) functional magnetic resonance imaging (fMRI), PET scan, and diffuse tensor imaging (DTI).

In its basics, neuroscientists can measure focal brain volumes with VBM which is an MRI technique that allows for the investigation of focal differences in brain anatomy.23 Essentially, a brain’s image is divided into hundreds of thousands of cubes, and a computerized algorithm quantifies total brain tissue, including gray and white matter and water. The individual’s brain data is then statistically compared with data derived from normal control subjects without neurological and psychiatric disorders and impaired cube brain tissue data.

With DTI, this is an MRI neuroimaging technique examining the location, orientation, and variations in the brain’s white matter tracts which is important in examining how critical areas of the brain are interconnected. The DTI specifically looks at brain fiber tracks and neural circuitry that connects a variety of brain regions and offers data as to the integrity or damage of these fibers. 24 These brain fiber tracks are needed in processing and communicating information to other areas of the brain.

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fMRI is an imaging tool for determining which regions of the brain are working, their efficiency by detecting changes associated with cerebral blood flow, especially during cognitive tasks.

PET scan is a neuroimaging test that includes the use of tracers which are attached to compounds such as glucose which is the main fuel of the brain. The PET scan can detect which areas of the brain are utilizing glucose at the highest rates and which ones are deficient or impaired.25 There are a number of studies addressing the neuroimaging in posttraumatic stress disorder.26 These studies have indicated the amygdala, hippocampus, and medial prefrontal cortex, including the anterior cingulate in PTSD. These areas of the brain are critical for emotional and fear/threat processing, paranoia, traumatic memories, planning, decision making, processing of emotions, and language for example. It is these areas that are often victimized by traumatic brain injury especially the prefrontal cortex, and there can be a double dose effect with a veteran or civilian with both PTSD and TBI. The trial court will often have a 702 hearing in which the forensic neuropsychologist will testify about the defendant’s background history, psychosocial and mental health background, the nature of the psychological and neuropsychological testing especially related to function impairments, as well as psychiatric diagnoses. The court will allow the forensic psychologist and neuropsychologist to testify about the defendant’s behaviors, including violence, as well as the forensic legal issues concerning the insanity, diminished capacity, mitigation, etc.

The trier of fact may also allow the forensic neuropsychologist (not psychologist) to testify to neuropsychological testing data, brain behavior relationships, including the criminal and violent behavior, as well as the relationship between the neuropsychological testing results and the neuroimaging. The neuropsychologist can testify to not only the brain functions related to the tests themselves but also what regions of the brain the tests may measure. Similarly, the forensic neuropsychologist can testify to the connections between the neuropsychological testing results and to the neuroimaging results, as well as potentially to the psychiatric diagnoses and the neuroimaging results.

Neuroscientific experts, such as neurologists, neuroscientists, and neuroradiologists will specifically be allowed to testify as to the neuroimaging process and results, as well as neuropathology, but courts often will not allow these experts to delve into criminal behavior or forensic issues as to insanity or diminished capacity.

In a death penalty case this author examined, the defendant was a former police officer who served six tours as a civilian in a Middle East war zone where he suffered brain injury and later suffered from symptoms of PTSD. The defendant’s mental state deteriorated over time when returning to the United States on leave. He continued to become more impulsive and rageful in benign events, he misperceived threats, and was involved in a road rage incident. The other party to the road rage called the sheriff ’s department who attempted to arrest the defendant following the road rage incident. The sheriff tried to gain entrance into the defendant’s home, and the defendant overreacted to his

misperceived threat and shot and killed the sheriff.

The neuroimaging data indicated brain damage and shrinkage that could be a consequence of TBI, seizure disorder, PTSD, and/or delusional disorder.

Psychological testing results yielded conditions consistent with clinical interview and background information relevant to PTSD and delusional disorder. Neuropsychological testing revealed evidence of significant brain dysfunction consistent with PTSD, traumatic brain injury, and an early dementing condition. There was a complete alignment between the structural neuroimaging data and the functional neuropsychological assessment data explaining an ultimate subcortical-cortical process of reactive aggression and violence.

Essentially, the defendant was in a constant state of paranoia and misperceived threat, was impulsive and easily angered, and was cognitively deteriorating. He had a fight/flight condition regarding his brain neural circuitry and function. The forensic psychological and neuropsychological information and testimony was put forth in the mitigation phase of the court case rather than the guilt-innocence phase, ultimately yielding a life without parole outcome.

Violence Risk Assessment and Risk Management Veterans returning for war are at risk for criminal justice involvement, as well as trauma.27 Veterans with probable PTSD or TBI who reported anger and/or irritability are more likely to be arrested than other veterans, and they are at higher risk for aggression and violence.

As part of a mitigation package, the defense may also request a violence risk assessment and risk management examination by the forensic psychologist/neuropsychologist. This violence risk assessment may be relevant to cases including other assault and violent non-murder cases. The forensic psychologist/neuropsychologist conducting risk assessment should certainly have a handle and experience relevant to the proper examination of violence risk assessment.

A solid mitigation package is not only useful in figuring out and assessing what is wrong with the defendant, what psychiatric disorders they have, and how their brain is functioning, but also helpful on what to do with a defendant pertinent to risk management issues. Services and plans, living situations, personal and social support, as well as potential stressors need to be considered in this examination process.

It is important to emphasize a focused and specialized risk assessment for violence with military veterans. 28 Forensic evaluation should consider a dispositional, historical, clinical, and contextual risk factor analysis and assessment.

Dispositional factors are basic demographics related to risk of violence and can include young age, male status, personality traits, aggressive attitudes, and low intelligence.

Historical factors may include pre-deployment violence and criminal offenses, history of domestic violence, history of child abuse, witnessing domestic violence as a youth, dysfunctional family of origin, substance use, violent events experienced during deployment, and combat exposure.

Clinical factors can include PTSD and prior trauma, high

PTSD symptom severity, TBI, substance use, low intelligence, depression, suicidality, and in particular the PTSD symptoms of irritability, low frustration tolerance, and hyperarousal.

Contextual factors also may include single marital status, unemployment, financial difficulties, relationship problems, and newer marriages.

Treating the Veteran There are a number of treatments to assist the veteran returning from combat. Obviously, there are a number of conditions to treat and especially are related to polytrauma (PTSD, TBI, chronic pain, and mental illness, especially major depressive disorder and substance dependence). Importantly, the potential of addressing impulsive aggression in treatment is critical through building emotional regulation skills with both individual and group therapies. Psychological treatment options may include skills, training, and affective interpersonal regulation, cognitive behavioral therapy, and dialectical behavioral therapy.

Psychiatric medication management is often necessary to treat psychiatric and brain disorder symptoms affecting emotional, behavioral, and cognitive functioning.

Concluding Remarks This article has addressed the unique issue of examining military motivated murder and violence. The information above in both Parts I and II, especially related to the assessment and diagnosis of PTSD and TBI, certainly can be applied to civilian cases, too. Further, the author cannot overemphasize the prevalence of early childhood trauma and the comorbidity of chemical dependency in military and civilian PTSD and TBI cases.

Along these lines, this author sets forth a tri-diagnosis phenomenon that includes not only the typical dual-diagnosis and presence of psychiatric disorder and mental illness with chemical dependency and addiction, but as a third component of

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brain dysfunction, which often is present in these cases pertaining to traumatic brain injury and/or neurodevelopmental disorders present in offenders (early disorders of compromise in brain development, i.e., learning disorder, ADHD, intellectual disability, and autism spectrum disorder).

The attorneys and court systems involved in these cases certainly have a heavy hand in dealing with such complexities in human behavior, brain behavioral relationships, and evidentiary tools such as neuroimaging when considering guilt, innocence, and moral culpability issues when working with these populations.

In some Texas jurisdictions there are veteran treatment courts29 that allow for specialized handling for veterans involved in criminal court cases that consider coordinated systems of court supervised treatment that ensures accountability while empowering veterans to become an integral and productive member of their community. The veteran’s court dockets often provide programs that utilize evidence-based practices that assist veterans in getting mental health and chemical dependency treatment and vocation and employment training and experiences while providing risk management and rehabilitative efforts with an ultimate goal of preventing re-offending.

The expert and lawyer should attempt to consult with the U.S. Department of Veteran Affairs and the Veteran’s Justice Outreach Program which is designed to avoid the unnecessary criminalization of mental illness and extended incarceration among veterans by ensuring that eligible, justice involved veterans have timely access to Veterans Health Administration (VHA) services. Veteran’s Justice Outreach specialists can provide direct outreach assessment and case management for justice involved veterans in local courts and jails and liaison with the local justice system partners.30 Along these lines, veteran treatment courts are another viable option to assess and monitor the criminogenic and mental health, as well as chemical dependency treatment needs for veterans involved in the criminal justice system.

Imperative to assessment and management of risk is the consideration of the tri-diagnosis related to mental illness and frequently PTSD, major depression, with co-occurring substance dependence, and TBI. The potential mediating influence of substance use, mental health, and combat and other trauma experiences has significant implications for preventing criminal aggressive behavior among U.S. active duty military personnel.31 Ultimately, the Global War on Terrorism has had great consequences on the mental health of troops returning to the U.S. post-war service. The risk of experiencing psychiatric, neurological, and chemical dependency issues is profound and ultimately places the veteran in jeopardy of committing violent acts and landing in the criminal justice system. Proper forensic mental health assessment is vital for the best representation and equitable treatment of the veteran.

Endnotes 1.

2.

3.

4.

5.

6.

Jackson v. State, 160 S.W.3d 568 (Tex. Crim. App. 2005).

Lizcano v. State, 2010 Tex. Crim. App. Unpub. LEXIS 270.

Ruffin v. State, 270 S.W.3d 586, 596-97 (Tex. Crim. App. 2008) Nikmanesh v. State, 2017 Tex. App. LEXIS 6051 State v. Perales, 2020 Tex. App. Lexis 75.

Brown v. State, 2014 Tex. App. LEXIS 8189

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7. RULE 702. TESTIMONY BY EXPERT WITNESSES. A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.

8. https://statutes.capitol.texas.gov/Docs/PE/htm/PE.19.htm 9. https://statutes.capitol.texas.gov/SOTWDocs/PE/htm/PE.9.htm 10. https://lawofselfdefense.com/jury-instruction/tx-31730limitations-on-self-defense/ 11. Broussard v. State, 809 S.W.2d 556, 559 12. https://statutes.capitol.texas.gov/Docs/PE/htm/PE.8.htm 13. https://www.justice.gov/archives/jm/criminal-resource-manual-634-insanity-defense-reform-act-1984 14. United States v. Brawner, 471 F.2d 969 (D.C. Cir. 1972) 15. Kemp v. State, 211 N.W. 2d 793 (Wis. 1973).

16. Penry v. Lynaugh,409 U.S. 302 (1989).

17. Porter v. McCollum, 130 S. Ct. 447 (2009).

18. United States v. Brownfield, No. 08-cr-00452-JLK, slip op. at 28 (D. Colo. Dec. 18, 2008).

19. United States v. Cantu, 12 F.3d 1506 (9th Cir. 1993).101 20. United States v. Cantu, 12 F.3d 1513 (9th Cir. 1993).

21. Horner, M., & Hamner, M. (2002). Neurocognitive functioning in posttraumatic stress disorder. Neuropsychology Review, Vol. 12(1). Vasterling, J., et al. Attention, learning, and memory performances, and intellectual resources in Vietnam veterans: PTSD and no disorder comparisons. Neuropsychology, Vol. 16(1).

22. https://guidelines.ussc.gov/gl/%C2%A75K2.0 23. Voxel-Based Morphometry. Voxel based morphometry (VBM) is a technique using MRI that allows investigation of focal differences in brain anatomy, using the statistical approach of parametric mapping. Handbook of Clinical Neurology. 2014.

24. Alexander, Andrew L; Lee, Jee Eun; Lazar, Mariana; Field, Aaron S. Diffusion Tensor Imaging of the Brain. An introduction to fMRI. April 2015. doi: 10.1007/9781-4939-2236-9_5.

25. PET Imaging in Neurology. Karl F. Hubner Department of Radiology, University of Tennessee Medical Center, Knoxville, Tennessee.

26. Bremner, M.D., J. Douglas. Neuroimaging in Posttraumatic Stress Disorder and Other Stress-related Disorders. Neuroimaging Clin N Am. Author manuscript; available in PMC 2009 Aug 19. Published in final edited form as: Neuroimaging Clin N Am. 2007 Nov; 17(4): 523–ix. doi: 10.1016/j.nic.2007.07.003.

27. Elbogen, EB & Johnson, Sally. Criminal Justice Involvement of Trauma and Negative Affect in Iraq and Afghanistan War Era Veterans. Journal of Consulting and Clinical Psychology. (2012) Vol. 80, No. 6, 1097–1102.

28. Elbogen, Eric B.; Fuller, Sara; Johnson, Sally C.; Brooks, Stephanie; Kinneer, Patrick; Calhoun, Patrick S.; Beckham, Jean C. Improving Risk Assessment of Violence Among Military Veterans: An Evidence-based Approach for Clinical Decision-making.

29. https://www.texvet.org/vetcourts-tx 30. https://www.va.gov/HOMELESS/VJO.asp 31. Hourani, Laurel L.; Williams, Jason; Lattimore, Pamela K.; Trudeau, James V.; Van Dorn, Richard A. Psychological Model of Military Aggressive Behavior: Findings From Population-Based Surveys.

John Matthew Fabian is both a board-certified forensic and clinical psychologist and fellowship-trained clinical neuropsychologist. Dr. Fabian has a Texas and national practice specializing in criminal forensic psychological/neuropsychological evaluations including competency to stand trial and Miranda, insanity, diminished capacity and self-defense, death penalty litigation, sexual offender risk assessment, internet pornography/ solicitation, and juvenile homicide and waiver cases. Dr. Fabian is currently on faculty at The University of Texas Health Sciences Center at Houston McGovern Medical School Department of Psychiatry and Behavioral Sciences Forensic Psychiatry Fellowship Training Program. He can be reached at john@johnmatthewfabian.com and 512.487.7216 and 216.338.6462. His offices are at 5716 W. US 290 Suite 110 Austin, TX 78735, and Two Twin Oaks, 227 North Loop 1604 East, Suite 150, San Antonio, 78232.

Texas Criminal Defense Lawyers Association

Veterans Seminar Co-Sponsored with SBOT Military and Veterans Law Section February 3, 2021 Livestream

Topic: Getting the Most from What the VA Offers Speaker:

Dorothy Carskadon

Veteran Justice Outreach Social Worker Amarillo VA Health Care System Building 1 (Original Hospital Building), Room 4142 806-355-9703 Extension 4463 FAX: 806-356-3799 Dorothy.carskadon@va.gov

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Department of Veterans Affairs Veterans Health Administration Washington, DC 20420

AMENDED March 3, 2020

VHA DIRECTIVE 1162.06(1) Transmittal Sheet September 27, 2017

VETERANS JUSTICE PROGRAMS (VJP) 1. REASON FOR ISSUE: This Veterans Health Administration (VHA) directive establishes procedures for the Veterans Justice Programs (VJP), incorporates the functions of both the Health Care for Reentry Veterans (HCRV) and Veterans Justice Outreach (VJO) Programs.

2. SUMMARY OF MAJOR CHANGES: a. This directive adds processes and procedures for the Veterans Justice Outreach Program and establishes the VJO and HCRV as the Veterans Justice Programs. b. Amendment dated March 3, 2020 includes: (1) Removal of the previous requirement for Department of Veterans Affairs (VA) medical facilities to adopt a local policy for implementing the Veterans Justice Program.

(2) Additional guidance on the role of VJP staff in facilitating Veterans’ access to civil and legal services.

(3) Removal of the responsibilities of VJP Specialists to document non-clinical program-development activities and maintain State-specific Incarcerated Veterans Reentry Guides.

(4) Inclusion of the responsibility of the VJP Supervisor to be aware of VJP Specialists’ outreach schedules and locations, consistent with best practices for ensuring the safety of field-based staff (see paragraph 7.e.(6)).

3. RELATED ISSUES: VHA Handbook 1160.01, Uniform Mental Health Services in VA Medical Centers and Clinics.

4. RESPONSIBLE OFFICE: The VHA Homeless Programs Office (10NC1) is responsible for the contents of this directive. Questions may be addressed to (202) 461-1635.

5. RESCISSIONS: VHA Handbook 1162.06, Health Care for Re-Entry Veterans (HCRV) Program, dated April 9, 2010, is rescinded.

6. RECERTIFICATION: This VHA directive is scheduled for re-certification on or before the last working day of September 2022. This VHA directive will continue to serve as national VHA policy until it is recertified or rescinded.

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AMENDED March 3, 2020

VHA DIRECTIVE 1162.06(1)

/s/ Poonam Alaigh, M.D. Acting Under Secretary for Health DISTRIBUTION: Emailed to the VHA Publications Distribution List on September 28, 2017.

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VHA DIRECTIVE 1162.06(1) CONTENTS VETERANS JUSTICE PROGRAMS (VJP)

1. PURPOSE ................................................................................................................... 1 2. BACKGROUND........................................................................................................... 1 3. DEFINITIONS ............................................................................................................. 2 4. POLICY ....................................................................................................................... 3 5. SCOPE........................................................................................................................ 4 6. RANGE OF SERVICES .............................................................................................. 5 7. RESPONSIBILITIES ................................................................................................... 7 8. VJP STAFF MEMBER TRAINING, WORKLOAD, AND DOCUMENTATION ............ 11 9. TREATMENT OBJECTIVES ..................................................................................... 12 10. ENVIRONMENT AND FACILITIES ......................................................................... 13 11. WORKING IN THE COMMUNITY AND WITH THE MEDICAL FACILITY............... 13 12. PROGRAM MONITORING AND EVALUATION ..................................................... 14 13. ACCESS TO CARE................................................................................................. 15 APPENDIX A VA Office of General Counsel Guidance – Distributed to VISN and VA Medical Facility Directors October 19, 2010 ..........................................................................................A-1

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VHA DIRECTIVE 1162.06(1)

VETERANS JUSTICE PROGRAMS (VJP) 1. PURPOSE This Veterans Health Administration (VHA) directive establishes procedures for the Veterans Justice Programs (VJP) and sets forth the National authority for the administration, monitoring, and oversight of VJP. AUTHORITY: Title 38 United States Code (U.S.C.) 2022, 2023; Pub. L. 107-95.

2. BACKGROUND a. The Veterans Justice Programs consist of two programs that serve Veterans interacting with the criminal justice system across the spectrum from contact with law enforcement to release from prison, jail, and other correctional facilities. b. The Healthcare for Reentry Veterans (HCRV) Program was developed in response to Public Law (Pub. L.) 107–95 and codified at Title 38 United States Code (U.S.C.) 2022. The Under Secretary for Health, in 2004, adopted the recommendation by the Mental Health Task Force that the Secretary should mandate that all Veterans Integrated Service Networks (VISNs) address the re-entry needs of incarcerated Veterans and develop a plan that will be implemented in fiscal year (FY) 2005. These recommendations were integrated into the Mental Health Strategic Plan, http://www.va.gov/op3/docs/strategicplanning/va2014-2020strategicplan.pdf which mandated that all VISNs address the transition needs of incarcerated Veterans and that each VISN submit a specific plan for pre-release assessments of Veterans in Federal and state correctional facilities to determine degree and type of need and methods of providing services. c. Building on ideas pioneered by a small number of Department of Veterans Affairs (VA) programs in the 1980s and expanded by some Health Care for Homeless Veterans outreach teams in the 1990s, the HCRV Program has been successful in partnering with state and Federal prisons to outreach to incarcerated Veterans; providing prerelease assessment services; referrals; linkages to medical, psychiatric, and social services, including housing resources and employment services; and providing postrelease short-term case management assistance. d. The Veterans Justice Outreach (VJO) Program was developed in response to 38 U.S.C. 2023, although section 2022 authorizes its continued operation following the lapse of section 2023. The Deputy Under Secretary for Health for Operations and Management mandated that all VA medical centers appoint and maintain at least one VJO Specialist to serve the needs of Veterans at the front end of the justice system, those in contact with law enforcement, incarcerated in local jails, and participating in treatment courts. e. VJP is a component of VHA’s homelessness prevention efforts and is vital for providing a gateway to VA and community services for Veterans who are justice involved. The mission of VJP is to partner with the criminal justice system to identify Veterans who would benefit from treatment and other services. VJP will ensure access 1

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to exceptional care, tailored to individual needs, by linking each Veteran to VA and community services that will prevent homelessness, improve social and clinical outcomes, facilitate recovery and end Veterans’ subsequent contact with the criminal justice system.

3. DEFINITIONS a. Diversion. A criminal justice concept that allows a defendant to pursue treatment in lieu of traditional criminal processing. VJP programs are not licensed criminal justice diversion programs; however, some courts allow VHA treatment to meet local criminal justice diversion requirements. b. Fugitive Felon Program. VHA’s procedures for ensuring compliance with the prohibition on providing certain benefits to fugitive felons as outlined in Public Law (Pub. L.) 107-103 Section 505, “Veterans Education and Benefits Expansion Act of 2001,” codified at 38 U.S.C. 5313B. FFP is administered by VA’s Office of Inspector General: see VHA Handbook 1000.02, VHA Fugitive Felon Program. c. Halfway House. A residence designed to assist persons, especially those leaving institutions, to reenter society and learn to adapt to independent living. NOTE: This type of facility can be known under a variety of names including residential reentry center, work release facility, community correctional center, or halfway house. d. Incarcerated. Confinement of a person suspected or convicted of a crime to a jail or prison facility operated by a government, either directly or under contract with another entity. VHA may not provide the medical benefits package to a Veteran who is incarcerated. Medical Benefits Package, 38 CFR 17.38(c)(5): In addition to the care specifically excluded from the “medical benefits package” under paragraphs (a) and (b) of this section, the “medical benefits package” does not include the following: Hospital and outpatient care for a veteran who is either a patient or inmate in an institution of another government agency if that agency has a duty to give the care or services. This exclusion does not apply to veterans who are released from incarceration in a prison or jail into a temporary housing program (such as a community residential re-entry center or halfway house). NOTE: If there is a question about whether a Veteran is legally incarcerated, please check with Regional Counsel; different states, counties and cities use jail facilities for purposes that may not meet the definition of incarceration. e. Justice Involved Veteran. A Veteran with active, ongoing, or recent contact with some component of the criminal justice system. This is a broad term and can be used to signify Veterans across the entire criminal justice continuum, or those with one or more of a range of criminal justice statuses: (1) Those who encounter law enforcement resulting in arrest or diversion to treatment or other services; (2) Those with active criminal charges who are residing in the community; (3) Those who are incarcerated pre-trial in a local jail; and 2

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(4) Those residing in the community while being seen in a local criminal court, Veterans Treatment Court, or other treatment court.

(5) It also includes Veterans who are serving sentences in jail and prison facilities (see Reentry Veteran, below).

NOTE: All reentry Veterans are justice-involved Veterans, but not all justice-involved Veterans are reentry Veterans. f. Reentry Veteran. A Veteran currently serving a sentence at a state or Federal correctional facility, or serving a sentence at a local jail facility, who is planning for release to the community. In previous guidance this was restricted to Veterans within 6 months of release; that time restriction is no longer applicable. g. Veteran. For the purposes of this directive a Veteran is a Veteran eligible for the VA medical benefits package, defined at 38 CFR 17.38. NOTE: When conducting outreach in justice system settings, VJP Specialists routinely encounter individuals who are known to be ineligible for VA health care, or whose eligibility status is uncertain (i.e., Veterans who are not enrolled with VHA). In these situations, a Specialist may assist an individual with the VHA enrollment process, or, if an individual is known to be ineligible, refer to appropriate non-VA services. h. Veterans Justice Program. A VHA community-facing outreach program intended to identify Veterans in criminal justice settings and link them to indicated VA and community services. VJP is a prevention-oriented component of the VHA Homeless Programs and incorporates the functions of both the Health Care for Reentry Veterans and Veterans Justice Outreach programs. i. Veterans Treatment Court. A treatment court model that brings Veterans together on one docket to be served as a group. A treatment court is a long-term, judicially-supervised, often multi-phased program through which criminal offenders are provided with treatment and other services that are monitored by a team which usually includes a judge, prosecutor, defense counsel, law enforcement officer, probation officer, court coordinator, treatment provider and case manager. Jurisdictions differ in the level of criminal offenses they accept, as well as whether to operate a pre-plea and/or post-plea model. VA is a treatment provider partner to these courts and does not provide court funding; VJP Specialists working in the courts do not make criminal justice decisions or provide legal counsel or forensic mental health evaluations.

4. POLICY It is VHA policy that VISNs and VA medical facilities partner with criminal justice agencies to conduct regular outreach to Veterans in criminal justice settings (e.g., prisons, jails, and courts) in order to facilitate their access to needed VA health care.

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5. SCOPE a. VJP constitutes a continuum of services designed to serve justice-involved Veterans. HCRV serves Veterans incarcerated in state and Federal prison and Veterans re-entering the community after incarceration in state and Federal prison.

Veterans Justice Outreach serves Veterans in contact with community law enforcement, incarcerated in local jails, and involved with treatment courts. The intention is to offer a VA intervention at any point in justice involvement, from initial law enforcement contact through and beyond release from a jail or prison facility after a conviction. This includes direct outreach and engagement of Veterans, as well as education of VA and criminal justice staff to create cultural competency regarding serving Veterans, and internal to VA to create competency in working with populations seen in criminal justice. b. VJP is a community-facing outreach program. The central goal of VJP is to identify vulnerable Veterans through outreach in criminal justice settings, to engage them in treatment and rehabilitation programs or community support services that will assist to: (1) Prevent their homelessness; (2) Facilitate recovery and readjustment to community life; and (3) Desist from commission of new crimes or parole or probation violations. c. Data from multiple studies show that criminal justice populations have many risk factors, such as histories of homelessness, mental illness, substance abuse, unemployment, and high rates of chronic health problems and infectious disease, that place them at high risk for recidivism, suicide, and failure in community functioning.

VJP Specialists perform outreach services in correctional institutions and courts to engage justice involved Veterans in VHA services that can prevent suicide and support healthy community functioning. d. The services VJP offers include but are not limited to treatment-matching assessment; referrals; linkages to medical, psychiatric, and social services, including housing resources and employment services; and case management support for Veterans who are in the community to create opportunities for justice-involved Veterans to engage in services that may assist them in their success. e. The program philosophy described in this directive applies to all VA VJP programs. However, it is recognized that flexibility is required to adapt these guidelines to each Regional and VA medical center’s VJP Programs due to geographic variation in penal institutions and courts, special needs of the Veteran population, and the availability of local VA and community resources. f. VJP staff members are medical center-based, and VJP services are provided in prisons, jails, courts and other criminal justice settings throughout each medical center’s catchment area.

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g. Some VJP Specialists function at the state level as liaisons and points of contact for state Departments of Corrections and other state agency officials. When a state is divided between two or more Regions, the VJP Specialists assigned to each Region need to designate a primary VJP contact for the state in order to create ease of access to VA services. Some VJP Specialists functioning at the state level provide services in more than one VA medical center service area within a VISN. In these cases, the VISN may determine how to capture workload.

6. RANGE OF SERVICES VJP includes a range of services intended to assist justice-involved Veterans. It is a multistage program establishing contact with Veterans, many with mental illness and/or substance use disorders, in prison, jail, court and other criminal justice settings, and facilitating their access to a wide range of VA and community-based services. Some of these VJP services are: a. Outreach. Outreach identifies Veterans among persons incarcerated in prison or jail, or otherwise in contact with criminal justice agencies. Engaging Veterans in participation in a treatment-matching assessment and follow-up with services is a vital component of outreach. NOTE: In many communities, state Department of Corrections and local county and city law enforcement agencies have partnered with VA to use the Veterans Reentry Search Service (VRSS) to identify Veterans. For more information on VRSS see: https://vrss.va.gov/. b. Treatment-Matching Assessment. Treatment-matching assessment provides an initial determination of the needs of the Veteran seen by the VJP Specialist and develops an initial plan. Once the Veteran presents at a VA medical center following outreach, a clinical assessment to determine medical and psychiatric diagnoses and other biopsychosocial needs, occurs at the time of medical or psychiatric evaluation and/or treatment program screening. NOTE: While a Veteran is incarcerated, VHA may not provide the medical benefits package, please see: 38 CFR 17.38(c)(5). c. Education. Education provides the Veteran with information on resources such as VA medical, psychiatric, substance use disorder and employment services, postrelease housing and community services, civil legal services, and benefits. d. Case Management. VJP is a community-facing outreach program, focused on making contact with justice-involved Veterans and linking them to needed services primarily within VHA, a health care system with extensive, well-established case management resources and procedures. VJP Specialists sometimes provide case management services when a Veteran’s circumstances make this appropriate (e.g., long-term participation in a Veterans Treatment Court, short-term case management to assist in engaging in VHA services). When VJP Specialists do provide case management services: (1) These will adhere to the principles and practices established by VHA directive 1110.04, and to facility-specific policies regarding case management.

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(2) When a Veteran has met their case, management goals with the VJP Specialist and has engaged in ongoing VA clinical care, VJP will exit the Veteran from VJP case management so the Veteran may transition to their ongoing, primary source of care.

Based on the individual needs of the Veteran and the local care continuum structure, Veterans may need to re-engage with VJP at the end of treatment in other VA clinical programs. In some instances, Veterans are seen for long periods of time in VJP (for example during extended Veteran Treatment Court oversight); when that occurs, the VJP Specialist and other treating clinicians will determine who will be identified as the primary case manager.

(3) The VJP model does not require a minimum or maximum case management time frame; Veterans exiting prison or jail with no ongoing criminal justice supervision may have very limited case management needs to engage with VA clinical services, while Veterans being overseen by a Veterans Treatment Court may have long-term case management needs from the VJP Specialist who is part of the court team. e. Consultation and Advocacy. Consultation and advocacy with VA and non-VA community programs provide the opportunity to address the receipt of VA services and issues presented by justice-involved Veterans. Consultation and advocacy have the goals of keeping barriers to service low and ensuring timely access to the continuum of care necessary to assist Veterans with community stability. Activities may include formal education to internal VA staff or external criminal justice stakeholders, meeting with leadership at a variety of levels, including VA leaders, criminal justice leaders, and elected officials, and one-on-one consultation regarding plans of clinical care. NOTE: VJP advocacy is focused on access to clinical services, both for individual Veterans and for the justice-involved Veteran population generally. VJP does not attempt to influence criminal justice outcomes such as charging decisions made by a judge, or to otherwise advocate for or represent a Veteran as would his or her attorney. f. Systems Intervention. Systems intervention is intended to improve VA, criminal justice, and non-VA community programs’ services to Veterans involved in criminal justice. It includes educating all stakeholders about the population and developing and negotiating strategies to change organizational policies to better serve Veterans involved in the criminal justice system. This establishes processes to: (1) Identify Veterans in criminal justice settings; (2) Educate criminal justice and community staff members about available VA services; (3) Coordinate outreach processes across VA, criminal justice and community organization systems; and (4) Develop new, innovative programs and define all stakeholders’ roles, for example start a Veterans Treatment Court, Veterans dorm in a jail or prison, or Veterans diversion program.

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g. Facilitating Access to Civil Legal Services. The Veterans Justice Programs work to improve access and decrease barriers to civil legal services, including by partnering with local legal service providers to improve Veterans’ ability to address their unmet civil legal needs. This establishes processes to: (1) Compile and maintain a listing of local legal service providers, ensuring that legal service information is current, accurate and easily available to veterans and staff; and (2) Build partnerships with legal service providers such as law schools, legal aid or pro bono service providers to develop legal clinics and/or medical legal partnerships.

NOTE: VJP staff must consult the appropriate Office of District Counsel when planning for a legal clinic to operate in a VA facility, in order to ensure compliance with VA policies regarding the use of space by a non-VA entity.

7. RESPONSIBILITIES a. Homeless Programs Office. The Homeless Programs Office (10NC1), VHA Central Office is responsible for ensuring that: (1) Funds for VJP programs are distributed to medical facilities expediently and in a manner consistent with VA regulations.

(2) Guidance, based on relevant laws, regulations, directives, and analysis of collected data, is provided to VISNs and VA medical facilities. This ensures that VJP programs are maintained and the program provides quality services which are in compliance with existing VA regulations as well as operating in accordance with applicable program policies.

(3) Guidance, based on relevant laws, regulations, directives, and analysis of collected data, is provided to other agencies such as United States (U.S.) Department of Justice, U.S. Department of Labor, U.S. Department of Housing and Urban Development and U.S. Department of Health and Human Services. This ensures that VJP programs operate in cooperation with reentry efforts being developed and operated by other Federal, local government, and community agencies.

(4) A National quality assurance program is maintained by the VJP Program Manager monitoring VJP Specialists’ access to prisons and jails, partnership with Veterans Treatment Courts, justice-involved Veterans’ access to VA programs, and outcomes for justice-involved Veterans contacted through VJP once they are seeking services through VA programs. b. Veterans Integrated Services Network Director. The VISN Director is responsible to: (1) Provide and maintain oversight of VJP programs to ensure the programs offer the expected range of quality services that are in compliance with existing laws and regulations.

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(2) Ensure justice-involved Veterans have access to VA programs that meet their needs to the extent the Veterans are eligible.

(3) Ensure timely completion of all mandated reporting, monitoring, and evaluation requirements.

(4) Ensure training addressing reentry needs and interventions specific to this population is provided for appropriate managers and clinicians.

(5) Ensure collaboration between VISNs that share a state. c. Network Homeless Coordinator. The Network Homeless Coordinator (NHC) is responsible to: (1) Oversee and monitor the VJP programs in his or her VISN. This includes support and guidance to ensure coordination and integration with other VA Services (for example Medical, Mental Health, Substance Use, and other Homeless Programs).

(2) Coordinate VISN-wide VJP reports, assessments, evaluations, and follow-up actions to implement VHA policy and procedures.

(3) Review VJP program critical incidents and initiate appropriate investigation and follow-up activities in collaboration with the medical center.

(4) Provide support, guidance, and advice to VJP program staff through regular communication, which must include, but is not limited to, regular site visits, including visits to a court, jail, and/or prison. d. VA Medical Facility Director. The VA medical facility Director is responsible to: (1) Provide and maintain oversight of VJP programs to ensure the programs offer the range of quality services that are in compliance with existing laws and regulations.

(2) Participate in annual strategic planning that is completed at the medical center level.

(3) Ensure justice-involved Veterans have access to VA programs that meet their needs to the extent the Veterans are eligible.

(4) Ensure that VA staff members assigned to the VJP Program have the appropriate backgrounds, education, experience, competencies, and training in evidence-based mental health and criminal justice specific interventions necessary to provide outreach in prison and jail settings and case management to a justice-involved population. VJP Specialists should be licensed independent practitioners (psychologists, social workers, nurses, or licensed mental health counselors would be appropriate).

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(5) Ensure VA staff members assigned to the VJP Program have the appropriate tools to accomplish their activities. For example, specialists are primarily field-based, so they require both office accommodations at the VA medical center and field tools such as access to VA cars, VA laptop computers with wireless modems, VA cell phones, and VA tele-health equipment. Also, since VJP Specialists primarily work with Veterans new to the VA system, they need access to eligibility staff members or to eligibility tools such as a Hospital Inquiry (HINQ) request from the Veterans Benefits Administration (VBA), Veterans Information System (VIS), and Enrollment System Redesign (ESR).

(6) Require timely hiring and backfilling of VJP positions to promote continuity of services to justice-involved Veterans.

(7) Ensure that VJP Specialists in centrally funded positions are not assigned collateral duties that interfere with their ability to perform their VJP duties.

(8) Support VJP Specialists in meeting the demands of a complex and challenging role by facilitating their access to ongoing training and other opportunities for professional development and advancement. This includes providing financial support for non-VA training and external training events when possible.

(9) Ensure training addressing interventions specific to this population is provided for appropriate managers and clinicians. e. Veterans Justice Programs Supervisor. The VJP Supervisor is responsible to: (1) Review VA Homeless Programs Office (HPO) evaluation results and other available evaluation data.

(2) Work with VA medical facilities, VISN Network Homeless Coordinators, and the VHA Central Office VJP National Director to provide program oversight and take action to correct any deficiencies that are discovered.

(3) Work with medical facility quality and performance management staff to develop a quality and risk management reporting system for VJP Veterans. This system is to include both quality issues involving VJP Veterans’ access to VA programs and risk issues involving VJP Veterans.

(4) Review VJP critical incidents and initiating appropriate investigation and followup activities in collaboration with the VA medical facility staff. This includes initiating Heads-up notifications and Issue Briefs as needed following VHA, VISN, and local policies.

(5) Provide support, guidance, and advice to VJP Specialists through regular communications, including site visits to prisons, jails and courts to facilitate mentoring and problem solving and facilitating site visits by justice system staff to VA medical facilities.

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(6) Be aware of VJP Specialists’ outreach schedules and locations, consistent with best practices for ensuring the safety of field-based staff. f. Veterans Justice Programs Specialist. The VJP Specialist is responsible to: (1) Implement the VJP Program as outlined in this directive. Depending on local needs, local positions may be defined as HCRV, VJO or a hybrid position that combines duties across the continuum of justice involvement.

(2) Develop processes to gain access to criminal justice settings. This may include state and Federal prisons, county and city jails, and courthouses and will involve obtaining appropriate security clearance, completing any required training, and presenting program information to correctional officials and officers.

(3) Develop and utilize processes (potentially including VRSS) for identifying Veterans in criminal justice settings.

(4) Develop processes for verifying the Veteran status and VHA eligibility of justiceinvolved Veterans.

(5) Establish and maintain points of contact with all major clinical services at each VA medical facility where Veterans will be referred to facilitate entry into those services.

(6) Identify VA and non-VA resources that can assist justice-involved and reentry Veterans with their community stabilization process.

(7) Provide outreach to Veterans in prison and jail settings. For Veterans who are eligible for VHA health care this includes psychosocial assessments and development of referral plans with Veterans. NOTE: This includes providing VA and non-VA resource information to Veterans individually or in groups in prison and jail settings.

(8) Provide referrals and directly link Veterans to VA resources, including Vet Centers, to the extent the Veteran is eligible. Provide information and linkage to community resources as appropriate.

(9) Conduct correspondence with incarcerated Veterans and other involved parties (e.g., corrections, parole, probation, family) as needed. NOTE: Consent of the incarcerated justice-involved Veteran must be obtained in accordance with relevant VA regulations and policy before any communication with a non-VA party.

(10) Provide case management as needed to coordinate treatment with VA services and other involved institutions, including parole and probation. NOTE: Case management responsibility transfers to the receiving VA clinical program, as described in Handbook 1110.04: Case Management Standards of Practice, once a justiceinvolved Veteran is fully engaged in care.

(11) Lead non-clinical program development activities that help develop, maintain, or expand the program locally. This would include such activities as delivering 10

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informational presentation about VJP to VA or community audiences, serving on justicerelated planning committees, and meeting with local criminal justice staff to negotiate access to the facility.

(12) Document, using VA standards (see, e.g., VHA Handbook 1907.01, Health Information Management and Health Records), the assessment and clinical progress of the Veteran. When a Veteran is referred to another program, this referral must be clearly documented in the medical record. NOTE: Documenting legal charges: VA’s Office of General Counsel has offered the opinion that a Veteran’s legal history and charges should not be documented in detail in the medical record unless they have direct bearing on clinical treatment.

(13) Document VJP Program participant data, as outlined by the Homeless Programs Office evaluation procedures. All Veterans who will be seen in VJP must be recorded in the Homeless Operations Management and Evaluation System (HOMES).

(14) Coordinate with the national network of VJP Specialists to ensure continuity of care for justice-involved Veterans released to communities and states that are far distant from the facility where they are incarcerated.

(15) Serve as the medical center’s liaison with local law enforcement agencies, to inform those agencies about locally-available resources for Veterans encountered in crisis situations and help develop procedures for local law enforcement officers to bring justice-involved Veterans to VA medical centers for needed care. This liaison activity may include the delivery of basic informational presentations at law enforcement staff meetings, participation as faculty in a law enforcement training academy curriculum or other ongoing training series, or other activities as appropriate.

8. VJP STAFF MEMBER TRAINING, WORKLOAD, AND DOCUMENTATION a. Staff Training. Training, including mandatory training on data collection procedures, is offered to VJP staff members through face-to-face conferences, webbased media, conference calls, and one-on-one support from VHA Central Office. Each member of the VJP staff is required to avail themselves of this training. b. Workload.

(1) VJP staff member workloads vary based on a number of factors. Due to the diversity of tasks VJP Specialists encounter, they may not meet usual office-based mental health clinic workloads. Extenuating factors, such as site-specific situations (e.g., urban versus rural, concentrations of prisons in certain states) impact workloads.

For example, time spent traveling to prison and jail sites reduces the time available to perform outreach and case management, in some cases travel distances between institutions in a catchment area may be particularly large.

(2) VJP Specialists are involved in advocacy, networking, and collaboration with community-based organizations. Their functioning on community reentry boards, contacting community agencies, developing community resources, training law 11

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enforcement officers, and participating in community meetings accounts for variation in workload.

(3) Consistent with the principles outlined in VHA Directive 1161, Productivity and Staffing in Outpatient Clinical Encounters for Mental Health Providers, VJP Supervisors should work individually with VJP Specialists to determine clinical workload targets based on nature of each individual position, correctly labor mapping clinical time, administrative time, and teaching time based on an evaluation of each Specialist’s duties. In large catchment areas, drive time with no Veteran contact also needs to be considered as a factor when determining workload targets.

(4) HCRV clinic visits are identified using the 591 Decision Support System (DSS) Identifier (stop code). VJO clinic visits are identified using the 592 Decision Support System (DSS) Identifier (stop code). Staff performing in a hybrid HCRV and VJO role should have clinics using both DSS identifiers. As facilities adopt the Cerner electronic health record, HCRV and VJO clinic visits will be identified appropriately in accordance with guidance provided regarding the new system. d. Documentation.

(1) Consistent with local professional standards requirements, all clinical contacts with justice-involved Veterans who are VHA eligible must be documented in the medical record.

(2) Only information relevant to treatment is to be provided in the medical record.

VJP Specialists must not offer detailed information regarding a justice-involved Veteran’s criminal history or details of pending charges that have the potential to create stigma and develop barriers to treatment. When criminal justice information is relevant to treatment planning or required as part of a clinical program intake screening process, careful language must be used to describe a criminal offense, not labeling a Veteran based on the nature of a crime.

(3) Consistent with Office of General Counsel Guidance, Veterans with sex offense histories must be treated the same as all other VHA eligible Veterans. Their medical records should not be flagged to reveal their sex offender status as there exists no health care treatment reason to do so. Indeed, in accordance with 38 U.S.C. 5701, 7332, The Privacy Act of 1974, 5 U.S.C. 552a, and the HIPAA Privacy Rule, 42 CFR Part 160, a patient's status as a sex offender should only be disclosed to VA employees with a need to know the information in order to perform their official duties.

9. TREATMENT OBJECTIVES The treatment objectives of the VJP Program are to: a. Engage the justice-involved Veteran in a treatment matching assessment; b. Facilitate engagement in recovery activity, including treatment when indicated;

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c. Refer and link the justice-involved Veteran, as clinically indicated, to needed medical, mental health, substance use disorder, employment, housing, and social services that promote stability in the community, to the extent the Veteran is eligible; d. Ensure the justice-involved Veteran is stabilized with services post-release and as needed use case management to enhance engagement with these services; e. Create trust and instill hope; f. Provide opportunities to enhance self-esteem, self-efficacy, and independence; and g. Target behaviors that can result in rearrest and reincarceration. NOTE: Some sites have implemented systematic practices to target criminogenic behaviors, such as Motivational Interviewing, Moral Reconation Therapy, Reasoning and Rehabilitation, and Thinking for Change.

10. ENVIRONMENT AND FACILITIES a. Office Location. VJP staff members usually have office space located in a VA medical facility. In some locations, VJP staff members are allocated office space by community partners, or tele-work. b. Space and Environment. Safe, private space needs to be available for VJP Specialists to provide adequate privacy for clinical interviews and case management with Veterans. c. Work in the Community. VJP Specialists work in limited-access environments where they are guests in other government agencies’ facilities. When working in criminal justice facilities and in the community, VJP Specialists must follow all safety instructions of criminal justice staff members, and community training guidelines provided by the VA Workplace Violence Prevention Program (WVPP) Employee Training Program.

11. WORKING IN THE COMMUNITY AND WITH THE MEDICAL FACILITY a. Networking. The relationship between VJP Specialists and the criminal justice partners in their catchment area is key to program success. VJP staff members must maintain a positive relationship with criminal justice leaders, community, and other local and state governmental staff members in order to maintain access to justice-involved Veterans. VJP Specialists are encouraged to join state, county and local task force bodies that address reentry and other criminal justice programs. Additionally, developing strong relationships with other VA programs and VA staff members (e.g., Vet Centers) expands the scope of resources the VJP Specialist can offer justiceinvolved Veterans in the course of developing a treatment plan. VJP Specialists must actively network with VA and community programs to establish and maintain linkages to provide additional resources for referrals.

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VHA DIRECTIVE 1162.06(1)

b. Sources of Referrals. The primary source of VJP referrals is criminal justice partner agencies. Outreach to prison and jail facilities is critical to begin treatment planning prior to the Veteran being released. Referrals may also come directly by letters from incarcerated Veterans, their family members, or other advocates. NOTE: VJP Specialists are encouraged to consult with VHA clinicians when a Veteran already established in VHA care becomes involved in criminal justice issues but should not assume primary responsibility for coordinating the Veteran’s treatment plan as the VJP program is to be outreach-focused. c. Independence and Flexibility to Meet Needs. VJP staff members must have the flexibility to develop innovative approaches to perform outreach in prison and jail facilities. Supervisors must give VJP Specialists the autonomy, flexibility, and resources needed to develop outreach strategies to identify and engage Veterans involved in the criminal justice system. This may include resources such as cellular phones, laptop internet connectivity, and access to telehealth equipment in order to function effectively and professionally in the field.

12. PROGRAM MONITORING AND EVALUATION a. Evaluation Goals. VJP is monitored by the HPO Office of Analytics and Operational Intelligence (OAOI). For additional information about program monitoring, see: https://vaww.homes.va.gov/VAHomesNew.aspx. NOTE: This is an internal VA Web site not available to the public. Questions regarding the evaluation need to be directed to the Homeless Program Office. The evaluation goals are to: (1) Describe the status and needs of justice-involved Veterans; (2) Monitor services delivered to Veterans in the program; (3) Ensure program accountability; and (4) Identify ways of refining the clinical program. b. Monitoring Components. The monitoring component of the VJP program evaluation provides ongoing information about program operation. This monitoring effort includes: (1) The collection of information about staffing and staff vacancies; (2) The measurement of workload of VJP Specialists (i.e., number of Veterans served and number of contacts with each Veteran); (3) An analysis of information concerning the Veterans served in the program, including demographics, homeless history, psychiatric and substance use disorders, work, income, past treatment, and past incarcerations; (4) An analysis of information concerning outreach to and work with specific prison, jails, and court programs visited; 14

September 27, 2017

VHA DIRECTIVE 1162.06(1)

(5) Monitoring of VJP Specialists’ non-clinical workload, including efforts to negotiate access to new prisons or jails, or to assist in communities’ development of new Veteranfocused courts, and relevant community liaison and education/training conducted; (6) Fiscal monitoring; and (7) Assessing justice-involved Veterans access to VA programs by overseeing and monitoring national performance metrics and remediating any deficiencies identified to ensure successful VJP implementation. c. Feedback to VJP Specialists. Periodic progress reports are distributed to all program sites. Specialists are encouraged to correct faulty data and to submit any additional information as needed. d. Quality and Performance Processes: Quality assurance and improvement processes are to be carried out in conjunction with VA medical center Quality and Performance Initiatives.

13. ACCESS TO CARE a. General Access Principles. Reentry and justice-involved Veterans, deemed by the justice system to have served time for their offense or to be eligible for treatment as an alternative to criminal sanctions, must be served by VA in the same patient-centered manner as other Veterans in VA medical and mental health settings.

(1) Equality of access: VA facilities must not deny care or treat differently with regard to wait lists any enrolled Veteran solely because of his or her legal history or probation or parole status.

(2) Screening and documentation: VA programs’ screening and assessment process must consider a Veteran’s current legal circumstances and determine whether the program can meet the individual Veteran’s needs while maintaining the program’s safety, security, and integrity. Legal history alone is not sufficient for denial of program admission. If there are uncertain elements of a Veteran’s presenting status or risk, or questions about how a program might meet an individual Veteran’s needs, the program should enlist risk assessment evaluation via a Disruptive Behavior Committee (DBC) consultation or by a Licensed Independent Provider (LIP) with appropriate training in behavioral risk assessment. Veterans not accepted for care must be provided information as to the reason for non-acceptance. The reasons for non-acceptance must be appropriately and clearly documented in the Veteran’s health care record, available for clinical review. In cases of non-acceptance, alternative sources of care must be explored and referrals given to ensure that needed care is provided. For additional guidance, see the 2009 Deputy Under Secretary for Operations and Management memorandum Access to VA services for reentry and justice-involved Veterans,” available at: https://dvagov.sharepoint.com/sites/VHAHL/HRRTP/VJP/default.aspx.

NOTE: This is an internal VA Web site that is not available to the public.

15

September 27, 2017

VHA DIRECTIVE 1162.06(1)

(3) Criminal background checks: VA’s Office of General Counsel has confirmed that VA clinical and administrative staff members may not use criminal background checks to inform treatment planning, including internet searches of criminal records. VA Police may only perform criminal background checks when there is a law enforcement requirement, not to inform treatment planning. NOTE: VJP staff members may check inmate locator websites to determine the location of a Veteran for outreach visit purposes only.

(4) Court dates: A Veteran’s upcoming court date(s) may not be the sole basis for denial of admission to a VA program. VA staff members may not require a Veteran to resolve upcoming legal issues before applying for clinical services. b. Clinical Decision Making and Legal Mandates.

(1) VHA does not provide custodial treatment or locked alternatives to incarceration.

(2) VHA provides treatment when clinically indicated based on a clinical evaluation, not based on a Veteran’s legal requirements, for example a parole or probation officer’s orders, or a judge’s mandate. A court or other criminal justice entity may determine that the VHA care plan meets its requirements and order a Veteran to engage with VHA services, but it may not dictate a treatment plan to VHA. NOTE: VHA can and does provide treatment to Veterans who are “court-ordered” to receive such treatment, but VHA cannot itself be “court-ordered” to provide or deny treatment to a Veteran, or to alter the scope or particulars of its clinician-determined treatment plans.

(3) Urine/other drug testing: Testing for alcohol or drug use as part of a substance use disorder treatment program should be determined by clinical need, not by a criminal justice mandate. See VHA Handbook 1160.04, VHA Programs For Veterans With Substance Use Disorders (SUD). A Veteran may choose to authorize release of their results to a criminal justice entity, but VHA does not need to change the schedule, type, or procedures of its testing in order to meet a criminal justice standard. c. Special Populations. All states are required under federal guidelines to maintain a registry of offenders who have committed certain sexual offenses after those offenders have served a sentence and been released to the community. Some states are now also registering offenders who have committed murder or arson. Based on state and local guidelines, persons on these registries often are restricted from living in certain areas in the community, including areas close to parks, schools, and day care centers. Some states also require community notification when a person on a registry moves to the area. VA’s Office of General Counsel has confirmed: (1) VA must treat a Veteran who needs to register as a sex offender the same as any other Veteran.

(2) VA may not place a flag on a Veteran’s electronic health record based upon needing to register as a sex offender. If the Veteran presents a safety concern and requires an escort while on campus a safety flag may be placed on the record, but it must not identify the Veteran as a sex offender.

16

September 27, 2017

VHA DIRECTIVE 1162.06(1)

(3) VA Police may not check on Veterans to confirm their address or confirm addresses to local community law enforcement.

(4) On Federal grounds a Veteran is not limited as to where they may seek services or reside based on the location of childcare centers. If there is a childcare center on VA Federal land, a Veteran who is a sex offender may pursue residential treatment on grounds and seek services on grounds. If the Veteran presents a safety concern to children, a safety flag may be placed on the electronic health record requiring an escort while on VA campus as in (2). NOTE: See Appendix A for the complete guidance document.

17

September 27, 2017

VHA DIRECTIVE 1162.06(1) APPENDIX A

VA Office of General Counsel Guidance – Distributed to VISN and VA Medical Facility Directors October 19, 2010 1. VA Responsibilities Concerning Registered Sex Offenders Seeking Treatment at VA Facilities.

2. It has come to our attention that some VA Medical Facilities and Health Care Systems have developed internal policies concerning registered sex offenders. These policies include flagging a patients’ medical record to indicate sex offender status and having VA Police check to ensure the sex offender is living at the address at which they are registered. Such policies are improper.

3. VA Medical Centers should treat Veterans eligible for VA health care who are also registered sex offenders the same as they would any other patients. Their medical records should not be flagged to reveal their sex offender status as there exists no health care treatment reason to do so. Indeed, in accordance with 38 U.S.C. 5701, 7332, the Privacy Act, 5 U.S.C. 552a, and the HIPAA Privacy Rule, a patient’s status as a sex offender should only be disclosed to VA employees with a need to know the information in order to perform their official duties. However, if Security and Law Enforcement believe that a patient poses a risk to other individuals and should be escorted by Security while on VA property as a matter of health care operations, the medical records could be flagged to indicate that the patient needs an escort and Security and Law Enforcement should be contacted when the patient is on VA property.

The flag should not identify the patient as a sex offender.

4. VA Police law enforcement authority is limited to crimes occurring on the property.

See 38 U.S.C. 902, Enforcement and arrest authority of Department police officers.

Hence VA Police have no authority or responsibility to follow up with local authorities to ensure that registered sex offenders are living at the correct address.

5. Finally, many states prohibit registered sex offenders from coming within a certain distance of a childcare center. VA medical facility with childcare centers are not bound by such laws as enforcement of same could result in a Veteran who is otherwise eligible for treatment under Federal law, being denied care at the VA medical facility because of a State law. The Supremacy Clause of the United States Constitution would thus preclude enforcement of the State law. However, if Security and Law Enforcement believe that a patient poses a threat to children, the medical records could be flagged to indicate that an escort is needed for the patient while on VA property.

A-1

Texas Criminal Defense Lawyers Association

Veterans Seminar Co-Sponsored with SBOT Military and Veterans Law Section February 3, 2021 Livestream

Topic: Maximizing VA Benefits for Your Client Speaker:

Rick Rousseau

100 W. Central Texas Expressway Suite 302 Harker Heights, TX 76548 (254) 699-9999 Phone (254) 699-9996 Fax rick.rousseau@crissrousseau.com www.CrissRousseau.com

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

BENEFITS ASSISTANCE SERVICE (BAS)

INCARCERATED VETERANS

CAN A VETERAN RECEIVE VA BENEFITS WHILE IN PRISON? It is important justice-involved Veterans are familiar with VA benefits including what VA benefits they may still be eligible to receive, what happens to the benefits they are already receiving if they become incarcerated, and what program are available to assist them with reintegrating back into the community once released from incarceration. VA can pay certain benefits to Veterans who are incarcerated in a Federal, State, or local penal institution; however, the amount we can pay depends on the type of benefit and reason for incarceration. This fact sheet provides information about the benefits most commonly affected by imprisonment.

HOW WILL IMPRISONMENT AFFECT VA BENEFITS? Despite the circumstances, some justice-involved Veterans may be eligible for VA benefits (i.e.), disability compensation, disability pension, education and training, health care, home loans, insurance, vocational rehabilitation and employment, and burial.

VA DISABILITY COMPENSATION VA disability compensation payments are reduced if a Veteran is convicted of a felony and imprisoned for more than 60 days. Veterans rated 20 percent or more are limited to the 10 percent disability rate.

For a Veteran whose disability rating is 10 percent, the payment is reduced by one-half. Once a Veteran is released from prison, compensation payments may be reinstated based upon the severity of the service connected disability(ies) at that time. Payments are not reduced for recipients participating in work release programs, residing in halfway houses (also known as "residential reentry centers"), or under community control. The amount of any increased compensation awarded to an incarcerated Veteran that results from other than a statutory rate increase may be subject to reduction due to incarceration. Compensation benefits are not reduced if imprisoned for a misdemeanor.

Disabilities determined by VA to be related to your military service can lead to monthly non-taxable compensation, enrollment in the VA health care system, a 10-point hiring preference for federal employment and other important benefits. Ask your VA representative or Veterans Service Organization representative about Disability Compensation, Pension, Health Care, Caregiver Program, Career Services, Educational Assistance, Home Loan Guaranty, Insurance and/or Dependents and Survivors’ Benefits.

VA DISABILITY PENSION If you are imprisoned in a Federal, State, or local penal institution as the result of conviction of a felony or misdemeanor, your pension payment will be discontinued effective on the 61st day of imprisonment following conviction. Failure to notify VA of a Veteran's incarceration could result in the loss of all financial benefits until the overpayment is recovered.

EDUCATION BENEFITS Beneficiaries incarcerated for other than a felony can receive full monthly benefits, if otherwise entitled. Convicted felons residing in halfway houses (also known as "residential re-entry centers"), or participating in work-release programs also can receive full monthly benefits.

Claimants incarcerated for a felony conviction can be paid only the costs of tuition, fees, and necessary books, equipment, and supplies. VA cannot make payments for tuition, fees, books, equipment, or supplies if another Federal State or local program pays these costs in full.

APPORTIONMENT TO SPOUSE OR CHILDREN All or part of the compensation not paid to an incarcerated Veteran may be apportioned to the Veteran's spouse, child or children, and dependent parents on the basis of individual need. In determining individual need, consideration shall be given to such factors as the claimant's income and living expenses, the amount of compensation available to be apportioned, the needs and living expenses of other claimants as well as any special needs, if any, of all claimants.

ADDITIONAL INFORMATION ABOUT APPORTIONMENT: •

• • •

VA will inform a Veteran whose benefits are subject to reduction of the right of the Veteran's dependents to an apportionment while the Veteran is incarcerated, and the conditions under which payments to the Veteran may be resumed upon release from incarceration.

VA will also notify the dependents of their right to an apportionment if the VA is aware of their existence and can obtain their addresses.

No apportionment may be made to or on behalf of any person who is incarcerated in a Federal, State, or local penal institution for conviction of a felony.

An apportionment of an incarcerated Veteran's VA benefits is not granted automatically to the Veteran's dependents. The dependent(s) must file a claim for an apportionment.

Benefits Assistance Service – May 2015

ARE YOU ELIGIBLE FOR VA MEDICAL CARE WHILE IMPRISONED? Incarcerated Veterans do not forfeit their eligibility for medical care; however, current regulations restrict VA from providing hospital and outpatient care to an incarcerated Veteran who is an inmate in an institution of another government agency when that agency has a duty to give the care or services.

VA may provide care once the Veteran has been unconditionally released from the penal institution.

Veterans interested in applying for enrollment into the VA healthcare system should contact the nearest VA healthcare facility upon their release.

VA PROGRAM FOR JUSTICE-INVOLVED VETERANS The Health Care for Re-entry Veterans (HCRV) Program is designed to help incarcerated Veterans successfully reintegrate back into the community after their release. A critical part of HCRV is providing information to Veterans while they are incarcerated, so they can plan to reentry themselves. A primary goal of the HCRV program is to prevent Veterans from becoming homeless once they are reintegrated back into the community.

VETERANS JUSTICE OUTREACH (VJO) INITIATIVE The VJO initiative is designed to help Veterans avoid unnecessary criminalization of mental illness and extended incarceration by ensuring eligible justice-involved Veterans receive timely access to VA health care, specifically mental health and substance use services (if clinically indicated) and other VA services and benefits as appropriate.

WHEN WILL VA BENEFITS BE RESUMED? Veterans may inform VA to have their benefits resumed within 30 days or less of their anticipated release date based on evidence from a parole board or other official prison source showing the Veteran’s scheduled release date.

Your award for compensation or pension benefits shall be resumed the date of release from incarceration if the VA receives notice of release within one year following release. Depending on the type of disability, VA may schedule you for a medical examination to see if your disability has improved. You will need to visit or call your local VA regional office for assistance.

Note: You are considered to have been released from incarceration if you are paroled or participating in a work release or half-way housing program.

Benefits Assistance Service – May 2015

Texas Veterans: Get Free Veterans Medical Records for VA Claims If you are requesting a Veterans medical records from a private medical provider in the State of Texas, and plan to use them in your Title 38 (VA) claim, then the private medical facility may not charge you a fee. This applies to the first copy of a Veterans medical records ONLY. If you ask for a second copy of a Veterans Medical Records that you have already received for free, then the provider may charge you. In Texas, however, the medical provider is required by law to supplement a request for Veterans Medical Records with any new records created or added to the Veterans treatment file/record. See the below citation/link to the Texas Health and Safety Code for more information.

How to Get Free Medical Records in Texas Under the Health and Safety Code, Chapter 161.201 and 161.202, Subchapter M, Medical or Mental Health Records, Texas veterans are eligible for no cost medical records when they are obtained to file a claim for a disability against the VA. Texas Health and Safety Code, Chapter 161.201, Subchapter M, Medical or Mental Health Records Definition In this subchapter, "health care provider" means a person who is licensed, certified, or otherwise authorized by the laws of this state to provide or render health care in the ordinary course of business or practice of a profession.

Fees (a) A health care provider or health care facility may not charge a fee for a medical or mental health record requested by a patient or former patient, or by an attorney or other authorized representative of the patient or former patient, for use in supporting an application for disability benefits or other benefits or assistance the patient or former patient may be eligible to receive based on that patient's or former patient's disability, or an appeal relating to denial of those benefits or assistance under: (1) Chapter 31, Human Resources Code; (2) the state Medicaid program; (3) Title II, the federal Social Security Act, as amended (42 U.S.C. Section 401 et seq.); (4) Title XVI, the federal Social Security Act, as amended (42 U.S.C. Section 1382 et seq.); (5) Title XVIII, the federal Social Security Act, as amended (42 U.S.C. Section 1395 et seq.); (6) 38 U.S.C. Section 1101 et seq., as amended; or (7) 38 U.S.C. Section 1501 et seq., as amended. (b) A health care provider or health care facility may charge a fee for the medical or mental health record of a patient or former patient requested by a state or federal agency in relation to the patient or former patient's application for benefits or assistance under Subsection (a) or an appeal relating to denial of those benefits or assistance.

(c) A person, including a state or federal agency, that requests a record under this section shall include with the request a statement or document from the department or agency that administers the issuance of the assistance or benefits that confirms the application or appeal. (d) A health care provider or health facility is not required to provide more than one complete record for a patient or former patient requested under Subsection (a)(6) or (7) without charge. If additional material is added to the patient or former patient's record, on request the health care provider or health facility shall supplement the record provided under Subsection (a)(6) or (7) without charge. This subsection does not affect the ability of a person to receive a medical or mental health record under Subsections (a)(1)-(5).

Distribution of Records A health care provider or health care facility shall provide to the requestor a medical or mental health record requested under Section 161.202 not later than the 30th day after the date on which the provider or facility receives the request.

Application of Other Law This subchapter controls over Section 611.0045 of this code and Section 159.006, Occupations Code, and any other provision that authorizes the charging of a fee for providing medical or mental health records.

BENEFITS AT SEPARATION

Honorable

DD Form 256A

General

Under Honorable Conditions DD Form 257A “4”

Other Than Honorable “5”

E Eligible NE Not Eligible TBD To be determined by Administering Agency DV Eligibility for these benefits depend upon specific disabilities of the veteran

Bad Conduct Discharge Dishonorable Discharge General Court-Martial) “6”

Authority and References “7”

Army Administered 1.

2.

3.

4.

5.

6.

7.

8.

9.

10.

Payment for Accrued Leave Death Gratuity (six months pay) Wearing of Military Uniform Admission to Soldiers’ Home “1” Burial in Army National Cemeteries Burial in Army Post Cemeteries “2” Army Board for Correction of Military Records Army Discharge Review Board Transportation to Home “3” Transportation of Dependents and Household Goods to Home

E E E E E E E E E E

E E E E E E E E E E

NE E NE NE NE NE E E E TBD “8”

NE E NE NE NE NE E NE “9” E TBD “8”

NE NE NE NE NE NE E NE E TBD “8”

37 USC 501-503; DODPEM Par. 40401a 10 USC 1480; DODPEM Par. 40501b 10 USC 771a, 772; AR 670-1 24 USC 49, 50 38 USC 1002; AR 290-5 AR 210-190 10 USC 1552; AR 15-185 10 USC 1553; AR 15-180 37 USC 404; JTR par. U7500-7506 37 USC 406; JTR par. U5225, par. U5370

E E E E E E E E E

E E E E E E E E NE

E E NE NE NE NE NE NE NE

E E NE NE NE NE NE NE NE

E NE NE NE NE NE NE NE NE

10 USC Section 1142 10 USC Section 1143, 1144 10 USC Section 1145 10 USC Section 1146 10 USC Section 1147 10 USC Section 1148 10 USC Section 1149 10 USC Section 1150 38 USC Section 3011

E E E E E E E E E E E E E E E E E E

E E E E E NE E E E E E E E E E E E E

E TBD TBD TBD “11” TBD NE E TBD TBD TBD TBD TBD TBD TBD TBD TBD TBD TBD

E TBD TBD TBD “11” TBD NE E TBD TBD TBD TBD TBD TBD TBD TBD TBD TBD TBD

NE NE NE TBD “11” NE NE NE NE NE NE NE NE NE NE NE NE NE NE

38 USC 410(b) 38 USC 521; 38 USC 3103 38 USC 562; 38 USC 3103 38 USC 711, 773; AR 608-2 38 USC 1502, 1503 38 USC 1411 38 USC 1701-1765 38 USC 1802, 1818 38 USC 610; 38 USC 3103 38 USC 612; 38 USC 3103 38 USC 614; 38 USC 612(b); 38 USC 3103 38 USC 614; 38 USC 3103 38 USC 801; 38 USC 3103 38 USC 1901; 38 USC 3103 38 USC 902; 38 USC 3103 38 USC 901; 38 USC 3103 38 USC 1002 38 USC 906; 38 USC 3103

E E

E E

E E

E E

NE NE

7 USC 1983(5) 42 USC 1477

E

E

NE

NE

NE

5 USC 2108, 3309-3316, 3502, 3504

E E E E

NE E E E

NE NE E NE

NE NE E NE

NE NE NE NE

5 USC 8331, 8332 38 USC 2021-2026 38 USC 2001-2014 5 USC 8501, 8521

E

E

NE

NE

NE

8 USC 1439, 1440; AR 608-3, par. 2-2-3

E

E

TBD

TBD

NE “12”

42 USC 417

E

E

TBD

TBD

NE

42 USC 6706; 13 CFR.317.35

Transitional Benefits & Services “14” 1. Pre-separation Counseling 2. Employment Assistance 3. Health Benefits 4. Commissary/Exchange 5. Military Family Housing 6. Overseas Relocation Assistance 7. Excess Leave/Permissive TDY 8. Preference for USAR/ARNG 9. Montgomery G.I. Bill (Additional Opportunity)

Department of Veteran Affairs “10” 1.

2.

3.

4.

5.

6.

7.

8.

9.

10.

11.

12.

13.

14.

15.

16.

17.

18.

Dependency and Indemnity Compensation Pension for Non-Service Connected Disability or Death Medal of Honor Roll Pension Insurance Vocational Rehabilitation (DV) Educational Assistance Survivors & Dependents Educational Assistance Home and other Loans Hospitalization & Domiciliary Care Medical and Dental Services Prosthetic Appliances (DV) Guide Dogs & Equipment For Blindness (DV) Special Housing (DV) Automobiles (DV) Funeral and Burial Expenses Burial Flag Burial in National Cemeteries Headstone Marker

Administered by Other Federal Agencies 1.

2.

Preference for Farm Loan (Dept. of Agriculture) Preference for Farm & other Rural Housing Loans (Dept. of Agriculture) 3. Civil Service Preference “13” (Office of Personnel Management) 4. Civil Service Retirement Credit 5. Reemployment Rights (Dept. of Labor) 6. Job Counseling & Employment Placement (Dept. of Labor) 7. Unemployment Compensation for Ex-Service members (Dept. of Labor) 8. Naturalization Benefits (Dept. of Justice Immigration & Naturalization Service) 9. Old Age, Survivors & Disability Insurance (Social Security Administration) 10. Job Preference, Public Works Projects “13” (Dept. of Commerce) General Eligibility. The eligibility of benefits set forth are not the sole determining factors, but only list the various types of discharge. The states also provide various benefits that will be influenced by the type of discharge, but information on state benefits should be obtained from state agencies.

FOOTNOTES: “1” The veteran must have served “honestly and faithfully” for 20 years or been disabled and excludes convicted felons, deserters, mutineers, or habitual drunkards unless rehabilitated or soldier may become ineligible if that person following discharge is convicted of a felony, or is not free from drugs, alcohol, or psychiatric problems.

“2” Only if an immediate relative is buried in the cemetery.

“3” Only if no confinement is involved, or confinement is involved, parole or release is from a US military confinement facility or a confinement facility located outside the US. “4” This discharge category includes the discharge of an officer under honorable conditions but under circumstances involving serious misconduct. See AR 600-8-24 “5” An officer who resigns for the good of the service (usually to avoid court-martial charges) will be ineligible for benefits administered by the Department of Veterans Affairs (DVA). 38 USC 3103.

“6” Including Commissioned and Warrant Officers who have been convicted and sentenced to dismissal as a result of general courts-martial, See AR 600-8-24, Chapter 5

“7” Additional references include Once a Veteran; Rights, Benefits and Obligations, DA Pam 360-526; and Federal Benefits for Veterans and Dependents, (VA Fact Sheet 1S-1) “8” To be determined by the Secretary of the Army on case-by-case basis.

“9” Only if the Bad Conduct Discharge was a result of conviction by General Court-Martial.

“10” Benefits from the Department of Veterans Affairs are not payable to (1) a person discharged as a conscientious objector who refused to perform military duty or refused to wear the uniform or otherwise comply with lawful orders of competent military authority, (2) by reason of a sentence of a general court-martial, (3) resignation by an officer for the good of the service, (4) as a deserter, and (5) as a alien during a period of hostilities. 38 USC 3103.

A discharge (1) by acceptance of an other than honorable discharge to avoid court-martial (2) for mutiny or spying, (3) for a felony offense involving moral turpitude, (4) for willful and persistent misconduct, or (5) for homosexual acts, involving aggravating circumstances or other factors will be considered to have been issued under dishonorable conditions and thereby bar veterans benefits. 38 CFR 3.12. A discharge under dishonorable conditions from one period of service does not bar payment if there is another period of eligible service on which the claim may be predicated (Administrator's Decision, Veterans Admin. No. 655, 20 June 1945).

“11” Any person guilty of mutiny, spying, or desertion, or who, because of conscientious objections, refuses to perform service in the Armed Forces or refuses to wear the uniform shall forfeit all rights to National Service Life Insurance and Servicemember’s Group Life Insurance.

38 USC 711, 773.

“12” Applies to Post-1957 service only. Post-1957 service qualifies for Social Security benefits regardless of type of discharge. Pre-1957 service under conditions other than dishonorable qualifies a service member for a military wage credit for Social Security purposes.

“13” Disabled and Vietnam-era veterans only. Post-Vietnam-era Veterans are those who first entered on active duty as or first became members of the Armed Forces after May 7, 1975. To be eligible, they must have served for a period of more than 108 day active duty and have other than a dishonorable discharge. The 180 day service requirement does not apply to (1) veterans separated from active duty because of a service-connected disability, or (2) reserve and guard members who served on active duty (under 10 USC 672a, d, or g. 673, or 673b) during a period of war (such as the Persian Gulf War) or in a military operation for which a campaign or expeditionary medal is authorized.

“14” Transitional benefits and services are available only to soldiers separated involuntarily, under other than adverse conditions.

VA Benefits Handbook - http://www.va.gov/pubaff/fedben/00Fedben.pdf

FREEDOM OF INFORMATION ACT REQUEST Department of Veterans Affairs Records Management Center ATTN: Freedom of Information P.O. Box 5020 St. Louis, MO 63115-5020 Date: RE: FREEDOM OF INFORMATION ACT REQUEST Veteran: NAME OF VETERAN VA File No: SERVICE NUMBER OR SOCIAL SECURITY NUMBER To Whom it May Concern: I am writing this letter on behalf of my client, Veteran NAME OF VETERAN. This is a request for documents under 38 C.F.R. §1.577, the Freedom of Information Act (FOIA), 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 552a, on behalf of Veteran NAME OF VETERAN. This request is properly made as it contains the signature of the requester.

1.

IDENTIFICATION OF DOCUMENTS. I hereby request all documents contained in any VA claims folder for any of Veteran NAME OF VETERAN’s VA claims, to include all documents in the right flap, left flap and center flap, AND, to include anything in the VA Virtual File, Virtual Records, or any electronic system where records about me or my claim are kept or stored.

2.

FORM/FORMAT IN WHICH TO PRODUCE INFORMATION. The FOIA and the VA’s own internal policies related to FOIA requests, require that the records be produced in the format sought by the requester, if the record is readily reproducible in that form or format. Please take special care to ensure that both sides of any two-sided documents produced in response to this request are included in the response and are scanned into a PDF in such a way that they do not “bleed-through” from one side of the document to the other.

3.

TIME FOR RESPONSE. Please note that this request for documents is being made pursuant to the Privacy Act, 5 U.S.C. § 552, and the Freedom of Information Act (FOIA), 5 U.S.C. § 552a, as well as 38 C.F.R. §1.550 and 38 C.F.R. § 1.577. Your agency has a duty to respond to this request within TWENTY (20) BUSINESS DAYS of the date of this request pursuant to 5 U.S.C. § 552 (a)(6)(A)(2)(i).

Additionally, although an extension of time to respond may be requested, it may only be granted for “unusual circumstances.” “Predictable agency workload” is not typically considered an unusual circumstance as stated in 5 U.S.C. § 552(a)(6)(C)(ii). Moreover, even to the extent that unusual circumstances could be demonstrated in this instance, the time limit for the extension is limited to “10 working days” pursuant to 38 C.F.R. § 1.553(d). Please also be aware that your agency's failure to respond to this request within twenty business (20) days can result in the filing of an administrative appeal with the office of the Secretary of the Department of Veterans Affairs pursuant to 38 C.F.R. § 1.557 and 5 U.S.C. § 552(a)(6)(A)(2) (ii), and/or, the filing of a federal lawsuit to compel the production of the information.

In any such appeal or lawsuit, I intend to seek not only injunctive and/or monetary relief related to this request, but to the extent permitted by law, injunctive and/or monetary relief based on the Department of Veteran’s Affairs patterns and/or practices of responding to FOIA requests in a manner violative of the FOIA, as well as attorney fees and litigation expenses, and any other remedy/relief available at law.

4.

Point of Contact. As discussed above, please respond to this request within twenty (20) business days. I may be contacted at XXX-XXX-XXXX..

Thank you very much in advance for your assistance.

Respectfully, _______________________ NAME OF ATTORNEY ADDRESS

_______________________ NAME OF VETERAN, Veteran ADDRESS

AUTHORIZATION FOR DISCLOSURE OF MEDICAL OR DENTAL INFORMATION PRIVACY ACT STATEMENT In accordance with the Privacy Act of 1974 (Public Law 93-579), the notice informs you of the purpose of the form and how it will be used. Please read it carefully.

AUTHORITY: Public Law 104-191; E.O. 9397 (SSAN); DoD 6025.18-R. PRINCIPAL PURPOSE(S): This form is to provide the Military Treatment Facility/Dental Treatment Facility/TRICARE Health Plan with a means to request the use and/or disclosure of an individual's protected health information.

ROUTINE USE(S): To any third party or the individual upon authorization for the disclosure from the individual for: personal use; insurance; continued medical care; school; legal; retirement/separation; or other reasons.

DISCLOSURE: Voluntary. Failure to sign the authorization form will result in the non-release of the protected health information.

This form will not be used for the authorization to disclose alcohol or drug abuse patient information from medical records or for authorization to disclose information from records of an alcohol or drug abuse treatment program. In addition, any use as an authorization to use or disclose psychotherapy notes may not be combined with another authorization except one to use or disclose psychotherapy notes.

SECTION I - PATIENT DATA 1. NAME (Last, First, Middle Initial)

2. DATE OF BIRTH (YYYYMMDD) 3. SOCIAL SECURITY NUMBER

4. PERIOD OF TREATMENT: FROM - TO (YYYYMMDD)

5. TYPE OF TREATMENT (X one) OUTPATIENT

INPATIENT

BOTH

SECTION II - DISCLOSURE TO RELEASE MY PATIENT INFORMATION TO: (Name of Facility/TRICARE Health Plan) a. NAME OF PERSON OR ORGANIZATION TO RECEIVE MY b. ADDRESS (Street, City, State and ZIP Code) MEDICAL INFORMATION 6. I AUTHORIZE

c. TELEPHONE (Include Area Code)

d. FAX (Include Area Code)

7. REASON FOR REQUEST/USE OF MEDICAL INFORMATION (X as applicable) PERSONAL USE

CONTINUED MEDICAL CARE

INSURANCE RETIREMENT/SEPARATION 8. INFORMATION TO BE RELEASED

9. AUTHORIZATION START DATE (YYYYMMDD)

SCHOOL

OTHER (Specify)

LEGAL

10. AUTHORIZATION EXPIRATION DATE (YYYYMMDD)

ACTION COMPLETED

SECTION III - RELEASE AUTHORIZATION I understand that: a. I have the right to revoke this authorization at any time. My revocation must be in writing and provided to the facility where my medical records are kept or to the TMA Privacy Officer if this is an authorization for information possessed by the TRICARE Health Plan rather than an MTF or DTF. I am aware that if I later revoke this authorization, the person(s) I herein name will have used and/or disclosed my protected information on the basis of this authorization. b. If I authorize my protected health information to be disclosed to someone who is not required to comply with federal privacy protection regulations, then such information may be re-disclosed and would no longer be protected. c. I have a right to inspect and receive a copy of my own protected health information to be used or disclosed, in accordance with the requirements of the federal privacy protection regulations found in the Privacy Act and 45 CFR s164.524. d. The Military Health System (which includes the TRICARE Health Plan) may not condition treatment in MTFs/DTFs, payment by the TRICARE Health Plan, enrollment in the TRICARE Health Plan or eligibility for TRICARE Health Plan benefits on failure to obtain this authorization.

I request and authorize the named provider/treatment facility/TRICARE Health Plan to release the information described above to the named individual/organization indicated.

11. SIGNATURE OF PATIENT/PARENT/LEGAL REPRESENTATIVE

12. RELATIONSHIP TO PATIENT (If applicable)

13. DATE (YYYYMMDD)

SECTION IV - FOR STAFF USE ONLY (To be completed only upon receipt of written revocation) 14. X IF APPLICABLE:

16. DATE (YYYYMMDD)

15. REVOCATION COMPLETED BY

AUTHORIZATION REVOKED 17. IMPRINT OF PATIENT IDENTIFICATION PLATE WHEN AVAILABLE

SPONSOR NAME: SPONSOR RANK: FMP/SPONSOR SSN: BRANCH OF SERVICE: PHONE NUMBER:

DD FORM 2870, DEC 2003

Reset

Adobe Professional 8.0

VA DISABILITY COMPENSATION SENTENCING DIRECT EXAM Q: when did you enlist in the Army?

I’m showing you (DD214) what has been marked as X. What is this document?

Do you recognize this document?

Does it appear to be an accurate copy of the document you received upon your discharge from the Army?

Your honor, we move for the document to be admitted into evidence.

Q: Mr. CLIENT, after your military retirement, did the VA grant you service-connected disabilities? Yes Q: What is your combined VA Disability Rating? 100% disabled Q: What was the effective date of your 100% VA Disability Rating?

DATE Q: How much is your VA Disability compensation per month? $XXXX OR AMOUNT FOR XXXX YEAR I’m handing you a document (VA Service Connected Disability Rating Letter) on Department of Veterans Affairs letterhead?

Do you recognize this document?

Does it appear to be an accurate copy of the document you received from the VA regarding your disability rating?

Your honor, we move for the document to be admitted into evidence.

Q: Mr. CLIENT, in preparing for this sentencing hearing today, did you check with the VA to determine what would happen to your VA Disability Compensation if you were incarcerated? Yes Q: Were you provided a fact sheet from the VA website regarding VA Benefits while in prison? Yes

I’m handing you a document entitled “Can a Veteran Receive VA Benefits While in Prison?”

Do you recognize this document?

Does it appear to be an accurate fact sheet from the VA that was printed off of the VA website?

Q: According to the VA Fact sheet, what happens to your VA disability compensation if you are incarcerated for more than 60 days?

Since I am 100% disabled my rating will reduce to 10% rate.

Your honor, we move for the document to be admitted into evidence.

Q: So, Mr. CLIENT, if you were incarcerated for more than 60 days, your VA disability rate would be reduced from 100% to 10% correct?

Q: Did you go to the VA website to determine what you would be paid at 10%? Yes I’m handing you a document entitled “Veterans Compensation Benefits Tables – Effective 12/1/17.

Do you recognize this document?

Does it appear to be an accurate benefits table from the VA that was printed off of the VA website? Yes Q: Mr. CLIENT, if you were paid at 10% disability rating due to be incarcerated for over 60 days, what rate would you be paid at? $136.24 Q: That is a difference of $3,054 per month to what you are currently recieving, isn’t it?

Loss of VA Disability Benefits: Current VA disability rate 100% at $3190.37 per month (2018 figures) If paid at 10% rate it would be $136.24 per month

One year: 10 x $3,054 = $30,540 Two years: 22 x $3,054 = $67,188 Three years: 34 x $3,054 = $103,836 Four years: 46 x $3,054 = $140,484 Five years: 58 x $3,054 = $177,132 Six years: 70 x $3,054 = $213,780 Seven years: 82 x $3,054 = $250,428 Eight years: 94 x $3,054 = $287,076 Nine years: 106 x $3,054 = $323,724 Ten years: 118 x $3,054 = $360,372

Rick Rousseau Colonel (Retired), U.S. Army Past Chairman, Military & Veterans Law Section, State Bar of Texas Criss & Rousseau Law Firm (CrissRousseau.com) Rick.Rousseau@CrissRousseau.com Central Texas Office:

Galveston Office:

100 W. Central Texas Expressway, Suite 302

719 59th Street

Harker Heights, Texas 76548

Galveston, Texas 77551

254-699-9999

409-356-9944

1

-Type of Military Discharge & VA Benefits -VA Disability Compensation & VA Pension -VA Appeals Modernization Act (AMA) -Veterans Benefits Administration Reports -Incarceration & VA Benefits -VA Benefits & the Criminal Sentencing Case -Requesting Records -Military Records -VA Records -Civilian Medical Records for VA Purposes -VA Claims File -VA/Military Records and Witnesses 2

What You Need to Know About Your Client’s Military Discharge (DD-214) • What Information is Found on the DD‐214?

• Military Discharges Generally • Military Administrative Separations

3

ALSO HANDOUT IN MATERIALS EXPLAINING EACH BLOCK

4





ADMINISTRATIVE DISCHARGES • Honorable Discharge • General (Under Honorable Conditions) Discharge • Other‐Than‐Honorable Discharge • Uncharacterized, or Entry‐Level Separation (ELS) Discharge PUNITIVE DISCHARGES • Bad‐Conduct Discharge • Dishonorable Discharge

5

6

7

8

 



 

Veteran (alone – no deps) VA Housebound Pension Payments ◦ Veteran ◦ Married Veteran ◦ Surviving Spouse

Veteran – Aid & Attendance (A&A) Without Dependents Veteran -A&A With One Dependent Surviving Spouse

9

10

11

12

VA Appeals Modernization Act February 19, 2019 Law Change

13

Veterans Benefits Administration

Board of Veterans’ Appeals

The Claim Establishes Effective Date

VBA Decision (Improved Notice)

Higher-Level Review Same Evidence 125-Day Avg. Goal

Supplemental Claim

Appeal (NOD)

New Evidence 125-Day Avg. Goal

3 Options 365-Day Avg. Goal

120 Days

Except for appeals to the Court and Supplemental Claims, all filing deadlines are one year.

Court of Appeals for Veterans Claims

14

14

VBA Supplemental Claim •

Replaces “reconsiderations” and “reopening” claims with “new and material” evidence

•

VA will readjudicate a claim if “new and relevant” evidence is presented or identified with a supplemental claim (open record).

•

•

• •

VA will assist in gathering new and relevant evidence (duty to assist).

Effective date for benefits is always protected when submitted within 1 year of prior decision.

BVA Higher-Level Review

•

More experienced VA employee takes a second look at the same evidence (closed record and no duty to assist).

•

Option for a one-time telephonic informal conference with the higher-level reviewer to discuss the error in the prior decision

•

De novo review with full difference of opinion authority

•

Duty to assist errors returned to lower-level for correction (quality feedback) Tracked and controlled under EP 030 series Decisionmakers are Decision Review Officers (DROs) and Senior VSRs

•

Tracked and controlled under EP • 040 series Decisionmakers are Veterans Service Representatives (VSRs) and Rating VSRs (RVSRs)

Board Appeal •

Evidence only docket: The appellant may submit evidence within the 90 day window following submission of the NOD. The Board does not have a duty to assist and the record is otherwise closed.

•

Direct docket: The appellant receives direct review by the Board of the evidence that was before VBA in the decision on appeal. The Board has a 365-day timeliness goal for this docket.

Quality feedback loop for VBA.

•

Hearing docket: The appellant will be scheduled for a Board hearing.

Additionally, the appellant may submit evidence within the 90 day window following the scheduled hearing. The Board does not have a duty to assist and the record is otherwise closed.

15 15



Claims Inventory: ◦ Disability compensation and pension claims that have been received by VA that requires development and a decision by a VA claims processor:  Current: 475,821; As of a year ago: 408,194



Claims Backlog ◦ Subset of Claims Inventory, the backlog number represents claims that have been awaiting a rating decision for more than 125 days since receipt:  Current: 213,304; As of a year ago: 68,222



VA Compensation Appeals Pending (Texas): ◦ Total: 49,561 16



Disability Compensation ◦ VA disability compensation payments are reduced if a Veteran is convicted of a felony and imprisoned for more than 60 days. ◦ Veterans rated 20 percent or more are limited to the 10 percent disability rate ($136.24 per month (2018)/ $144.14 for 2021). ◦ For a Veteran whose disability rating is 10 percent, the payment is reduced by one-half. ◦ Once a Veteran is released from prison, compensation payments may be reinstated based upon the severity of the service connected disability(ies) at that time. ◦ Payments are not reduced for recipients participating in work release programs, residing in halfway houses (also known as "residential re-entry centers"), or under community control. ◦ Failure to notify VA of a Veteran's incarceration could result in the loss of all financial benefits until the overpayment is recovered. https://www.benefits.va.gov/persona/veteran-incarcerated.asp 17



Pension ◦ Veterans in receipt of VA pension will have payments terminated effective the 61st day after imprisonment in a Federal, State, or local penal institution for conviction of a felony or misdemeanor. ◦ Payments may be resumed upon release from prison if the Veteran meets VA eligibility requirements. ◦ Failure to notify VA of a Veteran's incarceration could result in the loss of all financial benefits until the overpayment is recovered. https://www.benefits.va.gov/persona/veteran-incarcerated.asp

18

ď ˝

Apportionment to Spouse or Children â—Ś All or part of the compensation not paid to an incarcerated Veteran may be apportioned to the Veteran's spouse, child or children, and dependent parents on the basis of individual need. â—Ś In determining individual need, consideration shall be given to such factors as the claimant's income and living expenses, the amount of compensation available to be apportioned, the needs and living expenses of other claimants as well as any special needs, if any, of all claimants.

https://www.benefits.va.gov/persona/veteran-incarcerated.asp

19



Education Benefits ◦ Beneficiaries incarcerated for other than a felony can receive full monthly benefits, if otherwise entitled. ◦ Convicted felons residing in halfway houses (also known as "residential re-entry centers"), or participating in work-release programs also can receive full monthly benefits. ◦ Claimants incarcerated for a felony conviction can be paid only the costs of tuition, fees, and necessary books, equipment, and supplies. ◦ VA cannot make payments for tuition, fees, books, equipment, or supplies if another Federal State or local program pays these costs in full. ◦ If another government program pays only a part of the cost of tuition, fees, books, equipment, or supplies, VA can authorize the incarcerated claimant payment for the remaining part of the costs.

20

2021: 100% for Vet & Child is equal to $3,263.74

21



  

Veteran’s VA disability rate in 2018 at 100% would have been $3,190 per month If paid at 10% rate it would be $136 per month $3,190 – 136 = $3,054 loss per month Loss of VA Disability Compensation per year One year: 10 x $3,054 = $30,540 Two years: 22 x $3,054 = $67,188 Three years: 34 x $3,054 = $103,836 Four years: 46 x $3,054 = $140,484 Five years: 58 x $3,054 = $177,132 Six years: 70 x $3,054 = $213,780 Seven years: 82 x $3,054 = $250,428 Eight years: 94 x $3,054 = $287,076 Nine years: 106 x $3,054 = $323,724 Ten years: 118 x $3,054 = $360,372 22



Sentencing – Impact on VA Disability Benefits ◦ Sentencing Direct Exam Questions  Example in materials

◦ DD214 ◦ VA Letter: Current Disability Compensation  Client can get from VA E-Benefits website

◦ Veterans Compensation Benefits Rate Tables Effective 12/1/2020  https://www.benefits.va.gov/COMPENSATION/resources_comp01.asp

◦ VA website on Incarcerated Veterans:

 https://www.benefits.va.gov/persona/veteran-incarcerated.asp

◦ VA Fact Sheet on Incarcerated Veterans:

 https://www.benefits.va.gov/BENEFITS/factsheets/misc/incarcerated.pdf 23

Prosecutor argued for 10 years in jail  Sentence from Judge 

◦ 10 years Deferred Adjudication ◦ Fine ◦ Community Service ◦ Serve 100 days in jail,  first 50 day for day,  the remaining 50 days  Saturday & Sunday on work release 24



Official Military Personnel File (OMPF) ◦ Request at beginning of case due to length of time to get records ◦ No cost ◦ Contains some Service Treatment Records ◦ Contains disciplinary actions, awards, combat/deployment information ◦ Have it sent to Attorney ◦ Generally receive CD/DVD



Military Medical Records and Alcohol & Drug Treatment Records 25

ď ˝

https://www.archives.gov/veterans/military-service-records/standard-form-180.html

26

27

28



VA medical records ◦ Can obtain free of costs within weeks ◦ Who request?  Vet for self  Attorney can request with Vet signature





Private/Civilian Medical Records for Veteran benefits in Texas (discussed later) VA Claims file (discussed later)

29

30

31



Texas Health & Safety Code § 161.201, Subchapter M, Medical or Mental Health ◦ If using records to obtain SSA or VA benefits



Texas Health and Safety Code § 161.202.

Issues:



◦ May need to educate the provider of the law ◦ Medical record companies located outside of Texas ◦ Send letter with copy of the law 32

33



 

 

VA Benefits Claims File (C-File) ◦ Request at beginning of case due to length of time to get records (6-12 months currently) ◦ No cost What is in a C-File?

How to get a C-File? ◦ Client ◦ Attorney What do you receive?

Time

34

35

“Should� contain military records, military treatment records, VA treatment records, and VA claims documents

36







State courts cannot compel VA/DoD to release information or produce employee witnesses (Supremacy Clause).

VA/DoD will not consider a subpoena issued by an attorney or a court clerk.

VA/DoD requires a court ordered subpoena (must be signed by Judge).



You can request a business records affidavit



Request early!!!!!!

37

38

Rick Rousseau Colonel (Retired), U.S. Army

Criss & Rousseau Law Firm (CrissRousseau.com) Rick.Rousseau@CrissRousseau.com Central Texas Office:

Galveston Office:

100 W. Central Texas Expressway, Suite 302

719 59th Street

Harker Heights, Texas 76548

Galveston, Texas 77551

254-699-9999

409-356-9944

39

Rick Rousseau Colonel (Retired), U.S. Army Past Chairman, Military & Veterans Law Section, State Bar of Texas Criss & Rousseau Law Firm (CrissRousseau.com) Rick.Rousseau@CrissRousseau.com Central Texas Office:

Galveston Office:

100 W. Central Texas Expressway, Suite 302

719 59th Street

Harker Heights, Texas 76548

Galveston, Texas 77551

254-699-9999

409-356-9944

1

-Type of Military Discharge & VA Benefits -VA Disability Compensation & VA Pension -VA Appeals Modernization Act (AMA) -Veterans Benefits Administration Reports -Incarceration & VA Benefits -VA Benefits & the Criminal Sentencing Case -Requesting Records -Military Records -VA Records -Civilian Medical Records for VA Purposes -VA Claims File -VA/Military Records and Witnesses 2

What You Need to Know About Your Client’s Military Discharge (DD-214) • What Information is Found on the DD 214?

• Military Discharges Generally • Military Administrative Separations

3

4





ADMINISTRATIVE DISCHARGES • Honorable Discharge • General (Under Honorable Conditions) Discharge • Other-Than-Honorable Discharge • Uncharacterized, or Entry-Level Separation (ELS) Discharge PUNITIVE DISCHARGES • Bad-Conduct Discharge • Dishonorable Discharge

5

6

7

8

 



 

Veteran (alone – no deps) VA Housebound Pension Payments ◦ Veteran ◦ Married Veteran ◦ Surviving Spouse

Veteran – Aid & Attendance (A&A) Without Dependents Veteran -A&A With One Dependent Surviving Spouse

9

10

11

12

VA Appeals Modernization Act February 19, 2019 Law Change

13

Veterans Benefits Administration

Board of Veterans’ Appeals

The Claim Establishes Effective Date

VBA Decision (Improved Notice)

Higher-Level Review

Supplemental Claim

Same Evidence 125‐Day Avg. Goal

New Evidence

3 Options

125‐Day Avg. Goal

365-Day Avg. Goal

Appeal (NOD)

120 Days

Except for appeals to the Court and Supplemental Claims, all filing deadlines are one year.

Court of Appeals for Veterans Claims

14

14

VBA Supplemental Claim •

Replaces “reconsiderations” and “reopening” claims with “new and material” evidence

•

VA will readjudicate a claim if “new and relevant” evidence is presented or identified with a supplemental claim (open record).

•

•

• •

VA will assist in gathering new and relevant evidence (duty to assist).

Effective date for benefits is always protected when submitted within 1 year of prior decision.

BVA Higher-Level Review

•

More experienced VA employee takes a second look at the same evidence (closed record and no duty to assist).

•

Option for a one-time telephonic informal conference with the higher-level reviewer to discuss the error in the prior decision

•

De novo review with full difference of opinion authority

•

Duty to assist errors returned to lower-level for correction (quality feedback) Tracked and controlled under EP 030 series Decisionmakers are Decision Review Officers (DROs) and Senior VSRs

•

Tracked and controlled under EP • 040 series Decisionmakers are Veterans Service Representatives (VSRs) and Rating VSRs (RVSRs)

Board Appeal •

Evidence only docket: The appellant may submit evidence within the 90 day window following submission of the NOD. The Board does not have a duty to assist and the record is otherwise closed.

•

Direct docket: The appellant receives direct review by the Board of the evidence that was before VBA in the decision on appeal. The Board has a 365-day timeliness goal for this docket.

Quality feedback loop for VBA.

•

Hearing docket: The appellant will be scheduled for a Board hearing.

Additionally, the appellant may submit evidence within the 90 day window following the scheduled hearing. The Board does not have a duty to assist and the record is otherwise closed.

15 15



Claims Inventory: ◦ Disability compensation and pension claims that have been received by VA that requires development and a decision by a VA claims processor:  Current: 475,821; As of a year ago: 408,194



Claims Backlog ◦ Subset of Claims Inventory, the backlog number represents claims that have been awaiting a rating decision for more than 125 days since receipt:  Current: 213,304; As of a year ago: 68,222



VA Compensation Appeals Pending (Texas): ◦ Total: 49,561 16



Disability Compensation ◦ VA disability compensation payments are reduced if a Veteran is convicted of a felony and imprisoned for more than 60 days. ◦ Veterans rated 20 percent or more are limited to the 10 percent disability rate ($136.24 per month (2018)/ $144.14 for 2021). ◦ For a Veteran whose disability rating is 10 percent, the payment is reduced by one-half. ◦ Once a Veteran is released from prison, compensation payments may be reinstated based upon the severity of the service connected disability(ies) at that time. ◦ Payments are not reduced for recipients participating in work release programs, residing in halfway houses (also known as "residential re-entry centers"), or under community control. ◦ Failure to notify VA of a Veteran's incarceration could result in the loss of all financial benefits until the overpayment is recovered. https://www.benefits.va.gov/persona/veteran-incarcerated.asp 17



Pension ◦ Veterans in receipt of VA pension will have payments terminated effective the 61st day after imprisonment in a Federal, State, or local penal institution for conviction of a felony or misdemeanor. ◦ Payments may be resumed upon release from prison if the Veteran meets VA eligibility requirements. ◦ Failure to notify VA of a Veteran's incarceration could result in the loss of all financial benefits until the overpayment is recovered. https://www.benefits.va.gov/persona/veteran-incarcerated.asp

18

ď ˝

Apportionment to Spouse or Children â—Ś All or part of the compensation not paid to an incarcerated Veteran may be apportioned to the Veteran's spouse, child or children, and dependent parents on the basis of individual need. â—Ś In determining individual need, consideration shall be given to such factors as the claimant's income and living expenses, the amount of compensation available to be apportioned, the needs and living expenses of other claimants as well as any special needs, if any, of all claimants.

https://www.benefits.va.gov/persona/veteran-incarcerated.asp

19



Education Benefits ◦ Beneficiaries incarcerated for other than a felony can receive full monthly benefits, if otherwise entitled. ◦ Convicted felons residing in halfway houses (also known as "residential re-entry centers"), or participating in work-release programs also can receive full monthly benefits. ◦ Claimants incarcerated for a felony conviction can be paid only the costs of tuition, fees, and necessary books, equipment, and supplies. ◦ VA cannot make payments for tuition, fees, books, equipment, or supplies if another Federal State or local program pays these costs in full. ◦ If another government program pays only a part of the cost of tuition, fees, books, equipment, or supplies, VA can authorize the incarcerated claimant payment for the remaining part of the costs.

20

2021: 100% for Vet & Child is equal to $3,263.74

21



  

Veteran’s VA disability rate in 2018 at 100% would have been $3,190 per month If paid at 10% rate it would be $136 per month $3,190 – 136 = $3,054 loss per month Loss of VA Disability Compensation per year One year: 10 x $3,054 = $30,540 Two years: 22 x $3,054 = $67,188 Three years: 34 x $3,054 = $103,836 Four years: 46 x $3,054 = $140,484 Five years: 58 x $3,054 = $177,132 Six years: 70 x $3,054 = $213,780 Seven years: 82 x $3,054 = $250,428 Eight years: 94 x $3,054 = $287,076 Nine years: 106 x $3,054 = $323,724 Ten years: 118 x $3,054 = $360,372

22



Sentencing – Impact on VA Disability Benefits ◦ Sentencing Direct Exam Questions  Example in materials

◦ DD214 ◦ VA Letter: Current Disability Compensation  Client can get from VA E-Benefits website

◦ Veterans Compensation Benefits Rate Tables Effective 12/1/2020

 https://www.benefits.va.gov/COMPENSATION/resources_comp01.asp

◦ VA website on Incarcerated Veterans:

 https://www.benefits.va.gov/persona/veteran-incarcerated.asp

◦ VA Fact Sheet on Incarcerated Veterans:

 https://www.benefits.va.gov/BENEFITS/factsheets/misc/incarcerated.pdf 23

Prosecutor argued for 10 years in jail  Sentence from Judge 

◦ 10 years Deferred Adjudication ◦ Fine ◦ Community Service ◦ Serve 100 days in jail,  first 50 day for day,  the remaining 50 days  Saturday & Sunday on work release 24



Official Military Personnel File (OMPF)

◦ Request at beginning of case due to length of time to get records ◦ No cost ◦ Contains some Service Treatment Records ◦ Contains disciplinary actions, awards, combat/deployment information ◦ Have it sent to Attorney ◦ Generally receive CD/DVD



Military Medical Records and Alcohol & Drug Treatment Records

25

ď ˝

https://www.archives.gov/veterans/military-service-records/standard-form-180.html

26

27

28



VA medical records

◦ Can obtain free of costs within weeks ◦ Who request?

 Vet for self  Attorney can request with Vet signature





Private/Civilian Medical Records for Veteran benefits in Texas (discussed later) VA Claims file (discussed later)

29

30

31



Texas Health & Safety Code § 161.201, Subchapter M, Medical or Mental Health ◦ If using records to obtain SSA or VA benefits



Texas Health and Safety Code § 161.202.

Issues:



◦ May need to educate the provider of the law ◦ Medical record companies located outside of Texas ◦ Send letter with copy of the law 32

33



 

 

VA Benefits Claims File (C-File)

◦ Request at beginning of case due to length of time to get records (6-12 months currently) ◦ No cost What is in a C-File?

How to get a C-File? ◦ Client ◦ Attorney What do you receive?

Time

34

35

“Should� contain military records, military treatment records, VA treatment records, and VA claims documents

36







State courts cannot compel VA/DoD to release information or produce employee witnesses (Supremacy Clause).

VA/DoD will not consider a subpoena issued by an attorney or a court clerk.

VA/DoD requires a court ordered subpoena (must be signed by Judge).



You can request a business records affidavit



Request early!!!!!!

37

38

Rick Rousseau Colonel (Retired), U.S. Army

Criss & Rousseau Law Firm (CrissRousseau.com) Rick.Rousseau@CrissRousseau.com Central Texas Office:

Galveston Office:

100 W. Central Texas Expressway, Suite 302

719 59th Street

Harker Heights, Texas 76548

Galveston, Texas 77551

254-699-9999

409-356-9944

39

Texas Criminal Defense Lawyers Association

Veterans Seminar Co-Sponsored with SBOT Military and Veterans Law Section February 3, 2021 Livestream

Topic: Upgrading “Bad People” (Discharge Review Boards and Boards for Correction of Military Records) Speaker:

DonMichael Barbour

166 Elizabeth Rd Apt A San Antonio, TX 78209-5849 (832) 607-9879 Phone donm50@hotmail.com

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Discharge Upgrades and Correction of Military Records DonMichael Barbour, Staf f Attorney of Veterans Legal Assistance Project

About Us Texas Legal Services Center (TLSC) is a statewide legal aid nonprofit serving some of Texas' most vulnerable populations since 1977. Through its use of non-traditional delivery methods—like legal hotlines, online chat services, and pop-up clinics utilizing video conferencing technology, TLSC is able to reach Texans who would not otherwise have access to legal services.

2

What is a discharge upgrade?

Process where a veteran requests a change in the information on their DD-214.

Authority 10 U.S. Code §§ 1551 through 1559 32 Code of Federal Regulations §§ 70.9(b), (c) Department of Defense Instruction 1332.28

DD-214 is the Certificate of Release or Discharge from Active Duty *Most important veteran record

Frequently requested by employers and is required in any benefits application

Two important components of the DD-214: Characterization of Service Narrative Reason for Separation (Ex. Completion of Term of Service, Misconduct, Disability, Personality Disorder)

Types of Discharge: Administrative Discharges

Punitive Discharges

Honorable (HD)

Bad Conduct (BCD)

General, Under Honorable Conditions (GD)

Dishonorable (DD)

Other Than Honorable (OTH)

Dismissal (Officers Only)

*Uncharacterized (Entry-Level)

Discharge Characterization: By the Numbers General

OTH/BCD/DD

GeneralPercentage

OTH/BCD/DDPercentage

World War II

12,979

118,327

0.02%

1.7%

Korean War

122,381

267,199

3.0%

3.3%

Vietnam

354,484

267,199

3.9%

3.5%

Gulf War 1991-2001

128,315

139,445

5.3%

4.9%

Post-9/11

150,434

121,490

8.4%

6.8%

Discharge Characterization: Disparity in Branches of Service Honorable

General

Other Than Honorable

Bad Conduct

Dishonorable

Army

81%

15%

3%

0.6%

0.1%

Navy

85%

8%

7%

0.3%

0.0%

Marine Corps

86%

3%

10%

1%

0.1%

Air Force

89%

10%

0.5%

0.5%

0.0%

Total

84%

10%

5%

1%

0.1%

Financial Educational Employment Healthcare Home Loans Burial Justice

The impact of ‘Bad Paper’ To be entitled to VA Benefits, a former service member must have received at least a GENERAL DISCHARGE (under honorable conditions).

Discharge Upgrade Mythology I.

The military will automatically upgrade a discharge after six months.

II.

Good conduct after a discharge warrants an automatic upgrade

III.

It’s easy to get an upgrade.

IV.

Completing DD149/DD293 form and sending it in is sufficient to get an upgrade.

Military Review Boards Discharge Review Boards

Records Correction Boards

Army Discharge Review Board

Army Board for Correction of Military Records

Navy Discharge Review Board

Board for Correction of Naval Records

Air Force Discharge Review Board

Air Force Board for Correction of Military Records

Coast Guard Discharge Review Board

Coast Guard Board for Correction of Military Records

Military Review Boards: Procedure Discharge Review Boards

Records Correction Boards

Application Form

DD 293

DD 149

Members

5 officers (usually active duty)

3 civilian employees

Voting

Majority vote

Majority vote

Deadline

15 years from date of discharge

Within 3 years of the discovery of “error or injustice� that requires correction (waivable in the interest of justice)

GCM Discharge

Cannot change a discharge by GCM

Can change a discharge by GCM

Hearing

Right to a personal hearing

No right to a hearing, may request

Reconsideration

Allowed under circumstances (32 CFR 70.9)

Granted if new and material evidence

Military Review Boards: Standards of Review Discharge Review Boards

Records Correction Boards

“Propriety” or “Equity”

“Error” or “Injustice”

For BCD: “Clemency”

For BCD/DD: “Clemency”

Propriety or Error

Illegality

Equity, Injustice, or Clemency

Unfairness

Discharge Upgrades Step-by-Step

Discharge Upgrades: Step-by-Step 1.

Interview

Determine what happened during veteran’s military service Review entire service history from enlistment to discharge Discuss the events that led to discharge Consider carefully any trauma history

2.

Gather Documents

3.

Research

4.

Draft Memorandum

5.

Submit Application

6.

Wait

7.

Decision

Determine what the veteran has been doing since discharge

Why the veteran wants a discharge upgrade Existence of any prior attempts to upgrade discharge

Miscellaneous Sources of letter of support for application Written permission to request various records Answer any questions the veteran has about the discharge upgrade process

Discharge Upgrades: Step-by-Step 1.

Interview

2.

Gather Documents

Common questions veterans ask about discharge upgrades How long will it take to prepare the applications How long will it take for the Board to make a decision

3.

Research

4.

Draft Memorandum

5.

Submit Application

Who are the Board Members?

What is the likelihood of success?

If the Board denies my application, what happens next?

What can I do to make my application stronger?

6.

Wait

7.

Decision

Can I access any veteran benefits in the meantime?***

Discharge Upgrades: Step-by-Step

Official Military Personnel File: Standard Form 180 1.

Interview

2.

Gather Documents

3.

Research

Service Treatment Records: Standard Form 180 VA Medical Records: VA Form 10-5345 VA Claims File: Privacy Act Waiver Form or VA Form 3288 Civilian Medical Records:

4.

Draft Memorandum

5.

Submit Application

6.

Wait

Criminal Records Check Employment Records Educational Records Letters of Support

7.

Decision

Photographs

Discharge Upgrades: Step-by-Step 1.

Interview

2.

Gather Documents

3.

Research

4.

Draft Memorandum

5.

Submit Application

Two Types of Letters of Support Fact Witnesses and Character Witnesses

Possible Sources for Letters of Support Fellow Service Member Family Member Friend Employer Clergy

6.

Wait

7.

Decision

Teacher or Professor Social Work or Case Manager

Discharge Upgrades: Step-by-Step 1.

Interview

2.

Gather Documents

3.

Research

4.

Draft Memorandum

5.

Submit Application

What makes for a STRONG letter of support?

Who the writer is (including whether they served in or are connected to the military) How the writer knows the veteran What the writer witnessed (for fact witnesses) Stories that exemplify important attributes of the veteran or shed light on their true character Expression of why the Board should upgrade the veteran’s discharge

6.

Wait

7.

Decision

The writer’s signature and contact information

Discharge Upgrades: Step-by-Step 1.

Interview

2.

Gather Documents

Key Additional Source for a Letter: Mental Health Professionals (Treating Doctor or Medical Expert) If the veteran’s service or discharge was impacted by a mental health condition, it is critical to get medical evidence to support the application

3.

Research

The Boards want proof of a mental health diagnosis and a nexus between the mental health condition and the conduct leading to the discharge

4.

Draft Memorandum

5.

Submit Application

6.

Wait

7.

Decision

A strong letter from a medical professional would include information about how the doctor knows the veteran, whether the veteran met the criteria for a mental health disorder in service, and whether (in the doctor’s medical opinion) the mental health disorder contributed to the conduct leading to the discharge Best if the mental health professional is a psychologist, psychiatrist, or medical doctor with a mental health specialty.

The Impact of PTSD: Facts From FY2011 to FY2015, 62% of service members separated for misconduct had been diagnosed with a mental health condition Marine combat veterans diagnosed with PTSD are 11X more likely to be discharged for “misconduct�

From 2009 to 2015, the Army discharged for “misconduct� 22,000 soldiers who had been previously deployed and diagnosed with PTSD or TBI

Post Traumatic Stress Disorder 1.

Diagnostic Criteria

2.

Combat Stressors

Diagnostic Criteria: Exposed to one or more event(s) that involved death, actual or threatened serious injury, or threatened sexual violation.

Event was experienced in one or more of the following ways: (1)Actual experience; (2) Witnessed the event as it occurred to someone else; (3) Learned about the event

3.

Manifestations

where a close relative or friend experienced an actual or threatened violent or accidental death; or (4) experienced repeated exposure to distressing details of an

4.

Implications

5.

Numbers

6.

Substance Abuse

event

Post Traumatic Stress Disorder

Examples of Combat Stressors

1.

Diagnostic Criteria

2.

Combat Stressors

threatening dangers

3.

Manifestations

Seeing or experiencing the death or injury of a friend or fellow

Being in constant alert for an IED, ‘Booby Trap,’ or other life

soldier 4.

Implications

Being shot at or exposed to other dangers 5.

Numbers

Feeling responsible for the death of an enemy and fellow human 6.

Substance Abuse

Sexual trauma

Post Traumatic Stress Disorder 1.

Diagnostic Criteria

2.

Combat Stressors

3.

Manifestations

Re-experiencing: Thoughts, nightmares, flashbacks, emotional reactions, physiological reactions

4.

Implications

Avoidance: Avoiding thoughts of past trauma, reminders, amnesia, detachment, numbing, and reduced motivation

5.

Numbers

6.

Substance Abuse

Sleep disturbance, concentration problems, anger, hypervigilance, and hyper startle response Arousal, Sleep Disturbance, Concentration Problems, Anger, Hypervigilance, and Hyper-Startle Response

Post Traumatic Stress Disorder 1.

Diagnostic Criteria

2.

Combat Stressors

3.

Manifestations

Greater risk of other disorders: 80% of people with PTSD have another diagnosis; (depression and anxiety disorders are common).

-Greater unemployment

4.

Implications

-Relationship difficulties 5.

6.

Numbers Substance Abuse

-Health problems -Generally, worse quality of life

Post Traumatic Stress Disorder 1.

Diagnostic Criteria

2.

Combat Stressors

3.

Manifestations

4.

Implications

5.

Numbers

6.

Substance Abuse

Vietnam Veterans Men: 15.2 % Women: 8.1%

Gulf War Veterans All: 10%

OEF/OIF Veterans All: 10% – 18%

Military Sexual Assault Survivors: Approximately 30%

Post Traumatic Stress Disorder

Veterans with PTSD often self-medicate:

1.

Diagnostic Criteria

2.

Combat Stressors

3.

Manifestations

To be able to feel and enjoy life

4.

Implications

To keep going

5.

Numbers

To regain that adrenaline “high�

6.

Substance Abuse

As self-punishment

To forget

Becomes an independent addiction

Discharge Upgrades: Step-by-Step 1.

Interview

Military Regulations (propriety arguments) Separation regulations (current and past) Other applicable regulations

2.

Gather Documents

3.

Research

4.

Draft Memorandum

Military Review Board Decisions Available online: http://boards.law.af.mil/ BCMR decisions available on Lexis

5.

Submit Application

6.

Wait

7.

Decision

Military Review Board Regulations and Memoranda 32 CFR 70.9 Discharge Review Board regulations

Discharge Upgrades: Step-by-Step 1.

Interview

2.

Gather Documents

3.

Research

4.

Draft Memorandum

5.

Submit Application

Separation Regulations Review separation regulations for the particular service branch that applied at the time of the veteran’s discharge. Separation authority is identified on the DD-214.

Regulations are often online. If not, write to the service branch to request them under the Freedom of Information Act. Note: There has been significant changes in regulations affecting service members who: Are being discharged for Personality Disorder Have been diagnosed with PTSD or TBI Have experienced Military Sexual Trauma

6.

Wait

7.

Decision

Were discharged based on their sexual orientation

Discharge Upgrades: Step-by-Step 1.

Interview

2.

Gather Documents

3.

Research

4.

Draft Memorandum

5.

Submit Application

Board Decisions Past Board decisions my provide information about what arguments and evidence are persuasive (or not)

Past decisions of the BCMRs have some precedential effect | Wilhelmus v.

Geren, 796 F.Supp. 2d 157 (D.D.C. 2011): BCMRs must adhere to their own precedent in adjudicating cases because do to otherwise constitutes arbitrary and capricious action in violation of the Administrative Procedures Act

Cite persuasive authority and include copies of decisions as exhibits 6.

Wait

7.

Decision

Discharge Upgrades: Step-by-Step 1.

Interview

2.

Gather Documents

3.

Research

4.

Draft Memorandum

5.

Submit Application

6.

Wait

7.

Decision

Important Board Memoranda-Key DOD memoranda from recent years: DADT Repeal Memo: Instructs Boards to change discharge status, narrative reason, or other derogatory information where veteran (1) discharged under DADT or prior policies and (2) no aggravating circumstances.

Hagel Memo: Instructs Bards to give “liberal consideration” of applications of Vietnam veterans with PTSD or related conditions that contributed to misconduct leading to OTH discharge; applied broadly to all ears of service, all types of discharge, and all review Boards

Carson Memo: Provides for liberal waiver of statute of limitations period at BCMR’s for applications based on Hagel Memo

Kurta Memo: Expressly expands “liberal consideration” to include veterans of all eras, with any mental health condition, with any discharge characterization, before all Boards; look for “markers” of mental health disorder

Discharge Upgrades: Step-by-Step 1.

Interview

Kurta Memorandum Discharge impacted by mental health condition such as PTSD or TBI

2.

Gather Documents

Kurta Memo lists four questions that review Boards should consider:

3.

Research

4.

Draft Memorandum

5.

Submit Application

6.

Wait

7.

Decision

Did the veteran have a condition or experience that may excuse or mitigate the discharge?

Did that condition exist/experience occur during the military service?

Does that condition actually excuse or mitigate the discharge?

Does that condition or experience outweigh the discharge?

Advocacy Tip: Read and cite to the Hagel, Carson and Kurta memos.

Answer the four questions identified in the Kurta memo.

Discharge Upgrades: Step-by-Step 1.

Interview

2.

Gather Documents

3.

Research

Personality Disorder The DOD has not specifically addressed discharges for improper diagnosis of Personality Disorder or Adjustment Disorder. In these cases, veterans often seek to change the narrative reason for separation and the characterization of discharge. PD misdiagnosis case are relatively straight forward: if no PD dx now, then no dx in service.

Common arguments for discharge relief include: 4.

Draft Memorandum

5.

Submit Application

Unjust or inequitable because subsequent changes in separation regulations substantially enhance the rights provided to service members

Wait

Unjust or inequitable because veteran did not have PD/AD; correct diagnosis was PTSD, TBI or other mental health condition

Decision

(If less than honorably discharge) Unjust or inequitable because no record of misconduct

6.

7.

Error or Impropriety in following separation regulations for PD/AD discharge

Discharge Upgrades: Step-by-Step 1.

Interview

2.

Gather Documents

3.

Research

Basic components: Introduction: Basic overview of the case, why the Board should upgrade, relief sought (one page) Statement of Facts: What happened, in detail Arguments: Grounds for upgrade

4.

Draft Memorandum

5.

Submit Application

6.

Wait

7.

Decision

Conclusion

Supporting Affidavit: If submitting application for records review, also draft an affidavit of behalf of the veteran testifying to necessary facts and including any other important information

Discharge Upgrades: Step-by-Step 1.

Interview

2.

Gather Documents

3.

Research

4.

Draft Memorandum

5.

Submit Application

Should receive a letter confirming receipt of application in 4-6 week.

6.

Wait

May receive an Advisory Opinion or Notice of Records from BCMR, soliciting input.

7.

Decision

1.) Cover Letter 2.)Application Form (DD 149 or DD293) 3.) Memorandum 4.) Exhibits Submit a paper copy to the Board (or file online for some Boards)

Discharge Upgrades: Step-by-Step 1.

Interview

2.

Gather Documents

Records Correction Board have to decide 90% of cases within 10 months and 100% of cases within 18 months (plan on waiting the full 18 months).

Discharge review Boards have no time limit for action.

3.

Research

Can ask to expedite cases.

4.

Draft Memorandum

BCMRs generally require evidence of terminal illness to expedite matter.

5.

Submit Application

6.

Wait

7.

Decision

Discharge Review Board: Expedited resolution of applications by veterans who deployed in support of a contingency operation and were later diagnosed with PTSD or TBI and whose applications are based on matters relating to PTSD or TBI. 10 U.S.C. ยง 1553.

Discharge Upgrades: Step-by-Step 1.

Interview

Once you receive the decision from the Board‌ 2.

Gather Documents

3.

Research

4.

Draft Memorandum

5.

Submit Application

6.

Wait

7.

Decision

If favorable, veteran may receive DD 214 with decision or DD 214 may arrive separately in a few weeks.

If unfavorable (or less than fully favorable), right to appeal.

DRB Records Review: ask for personal hearing (or go to BCMR or federal court) DRB Personal Hearing: go to BCMR or federal court BCMR: seek judicial review in federal court Pay attention to deadlines!

Six year statute of limitations runs from the date of discharge, not from the date of DRB or BCMR decision. Martinez v. United States 333 Fed. 3d 1295 (Fed. Cir. 2003)

Judicial Review May be either to the Court of Federal Claims or local District Court.

“Little Tucker Act” 28 USC 1346(a)(2)

May also seek review under the APA; most circuits (including the DC and Fed Circuits) apply an “arbitrary and capricious” standard

Extremely deferential standard of review. See Kreis v. Secretary of the Air Force, 866 F 2d 1508 (D.C. Cir. 1989)

Rates of Success Historically, rates of success at Boards have varied considerably.

Currently, rates of success are low (single digits) but higher for certain categories of applicants.

Applications under the Hagel Memorandum (PTSD/TBI) have higher rates of success.

Army 47% Navy 31% Air Force 38%

Resources U.S. Department of Veterans Affairs: How to Apply for a Discharge Upgrade Yale Law: Veterans Discharge Upgrade Manual

Relevant NGO and Government Reports Government Accountability Office, Actions Needed to Ensure Post Traumatic Stress Disorder and Traumatic Brain Injury are Considered in Misconduct Separations, https://www.gao.gov/assets/690/684608 YLS Veterans Legal Services Clinic, Casting Troops Aside: The United States Military’s Illegal Personality Discharge Problem, https://law.yale.edu/system/files/documents/pdf/unfinishedbusiness.pdf YLS Veterans Legal Services Clinic, Unfinished Business: Correcting “Bad Paper” for Veterans with PTSD, https://law.yale.edu/system/files/documents/pdf/unfinishebusiness.pdf

DonMichael Barbour Texas Legal Services Center Veterans Legal Assistance Program dbarbour@tlsc.org 512-477-6000, Ext. 158

Case 3:16-cv-02010-CSH Document 198-2 Filed 11/17/20 Page 1 of 20

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT STEPHEN M. KENNEDY and ALICIA J. CARSON, on behalf of themselves and all others similarly situated,

No. 3:16-cv-2010-CSH

Plaintiffs,

STIPULATION AND AGREEMENT OF SETTLEMENT

v.

RYAN D. McCARTHY, Acting Secretary of the Army, Defendant.

STIPULATION AND AGREEMENT OF SETTLEMENT This Stipulation and Agreement of Settlement (the “Stipulation” or “Settlement Agreement”), dated as of November 17, 2020, is made and entered into by and between: (i) Ryan D. McCarthy, in his official capacity as Secretary of the U.S. Army (the “Army”) (“Defendant”); and (ii) Stephen M. Kennedy and Alicia J. Carson, individually and on behalf of themselves and a class of persons similarly situated (the “Plaintiffs”). Plaintiffs and Defendant shall be referred to in this Settlement Agreement individually as a “Party” and collectively as the “Parties.”

I.

RECITALS This Settlement Agreement is made and entered into with reference to the following

facts: A.

On December 8, 2016, Plaintiff Kennedy commenced this action against

Defendant to obtain judicial review of the Army Discharge Review Board’s (“ADRB”) denial of his discharge upgrade application (the “Initial Complaint”). (ECF No. 1.)

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Case 3:16-cv-02010-CSH Document 198-2 Filed 11/17/20 Page 2 of 20

B.

Defendant moved to remand or dismiss the Initial Complaint on March 27, 2017.

(ECF No. 10.)

C.

On April 17, 2017, Plaintiff Kennedy and Plaintiff Carson filed an Amended

Complaint seeking to litigate this action on behalf of a class. (ECF No. 11.) The Amended Complaint alleged, among other things, that since start of military operations in Iraq and Afghanistan, the Army discharged thousands of men and women with Other Than Honorable (“OTH”) or General (Under Honorable Conditions) (“GEN”) statuses due to misconduct attributable to post-traumatic stress disorder (“PTSD”), traumatic brain injury (“TBI”), and related mental health conditions. Specifically, the Amended Complaint alleged that upon their return from Iraq and Afghanistan, veterans with service-connected PTSD, TBI, and other related mental health conditions received OTH and GEN discharges and were systematically denied status upgrades by the ADRB. The Amended Complaint further alleged that these veterans were denied status upgrades even as scientific and medical understanding of PTSD and TBI advanced and explained how these conditions can affect soldiers’ behavior. Plaintiffs further alleged that, despite the 1944 statute creating the ADRB, longstanding regulations, and binding Department of Defense guidance that clarified the ADRB’s obligation to give liberal consideration to the applications of former soldiers who incurred these mental health conditions, the ADRB systematically failed to apply appropriate decisional standards or provide Class members with due consideration, in violation of the Administrative Procedure Act (“APA”) and the Due Process Clause of the Fifth Amendment.

D.

On June 27, 2017, Plaintiffs filed a motion for class certification. (ECF No. 15.)

Defendant opposed Plaintiffs’ motion.

2

Case 3:16-cv-02010-CSH Document 198-2 Filed 11/17/20 Page 3 of 20

E.

On June 30, 2017, Defendant filed a motion to dismiss the Amended Complaint

or, in the alternative, remand Plaintiff Kennedy’s and Plaintiff Carson’s ADRB applications to the Army for further consideration. (ECF No. 16.) Plaintiffs opposed Defendant’s motion.

F.

On September 18, 2017, the Court denied Defendant’s motion to dismiss without

prejudice, granted Defendant’s motion for voluntary remand, and stayed this action pending reconsideration of Plaintiff Kennedy’s and Plaintiff Carson’s ADRB applications. (ECF No. 29.)

G.

On October 18, 2017, before the ADRB could reconsider Plaintiff Carson’s

application, the Adjutant General, Major General Thaddeus Martin, exercised his authority to upgrade Plaintiff Carson’s characterization of service to Honorable.

H.

On March 29, 2018, the ADRB upgraded Mr. Kennedy’s discharge

characterization to Honorable.

I.

On June 4, 2018, Defendant filed a second motion to dismiss the Amended

Complaint. (ECF No. 50.) Plaintiffs opposed Defendant’s motion.

J.

Also on June 4, 2018, Plaintiffs filed a second motion for class certification.

(ECF No. 51.) Defendant opposed Plaintiffs’ motion.

K.

On December 21, 2018, the Court granted Plaintiffs’ motion for class certification

pursuant to Federal Rule of Civil Procedure 23(b)(2). (ECF No. 74.) The Court defined the class as “[a]ll Army, Army Reserve, and Army National Guard veterans of the Iraq and Afghanistan era—the period between October 7, 2001 to present—who: (a) were discharged with a less-than-Honorable service characterization (this includes General and Other than Honorable discharges from the Army, Army Reserve, and Army National Guard, but not Bad Conduct or Dishonorable discharges); (b) have not received discharge upgrades to Honorable; and (c) have diagnoses of PTSD or PTSD-related conditions or record documenting one or more

3

Case 3:16-cv-02010-CSH Document 198-2 Filed 11/17/20 Page 4 of 20

symptoms of PTSD or PTSD-related conditions at the time of discharge attributable to their military service under the Hagel Memo standards of liberal and special consideration.”

L.

The Court also named Plaintiff Kennedy and Plaintiff Carson as class

representatives, and the Jerome L. Frank Legal Services Clinic of Yale Law School and Jenner & Block LLP as Class Counsel.

M.

On January 9, 2019, the Court denied Defendant’s motion to dismiss. (ECF No.

N.

On March 6, 2019, Plaintiffs filed a Federal Rule of Civil Procedure 26(f) Report,

75.)

which contained a proposed case management plan. (ECF No. 76.) The same day, Defendant filed a motion for a status conference, in which Defendant took the position that discovery was not warranted in this case. (ECF No. 77.)

O.

On April 5, 2019, the Court ordered Defendant to produce to Plaintiffs “the full

administrative records relevant to the claims of lead plaintiffs in this action in addition to any relevant policy memoranda, regulations and other documents, to the extent that these documents might provide background information.” The Court also determined that it would “consider whether discovery is necessary thereafter.” (ECF No. 80.) Defendant filed the administrative record on May 31, 2019. (ECF Nos. 82–85.)

P.

On June 18, 2019, Plaintiffs moved for additional discovery. (ECF No. 97.)

Defendant opposed Plaintiffs’ motion.

Q.

On September 6, 2019, the Court ruled that it would allow Plaintiffs to conduct

discovery outside of the administrative record and referred the case Magistrate Judge Robert M. Spector to supervise discovery. (ECF No. 101.)

4

Case 3:16-cv-02010-CSH Document 198-2 Filed 11/17/20 Page 5 of 20

R.

On February 19, 2020, Defendant and Plaintiffs participated in a settlement

conference before Judge Spector. (ECF No. 142.) Over the subsequent months, the Parties engaged in protracted and extensive settlement negotiations supervised by Judge Spector. (See ECF Nos. 145, 149, 154, 156, 158, 189, 162, 165, 167, 169, 176, 177, 178, 180, 181.)

S.

On October 7, 2020, after extensive arm’s-length negotiations and exchange of

multiple proposals, Plaintiffs and Defendants reached an agreement in principle to settle the Litigation.

T.

Based on Class Counsel’s investigation and evaluation of the facts and law

relating to the matters alleged in the pleadings, Plaintiffs and Class Counsel agreed to settle the Litigation pursuant to the provisions of this Stipulation after considering, among other things: (1) the substantial benefits available to the Class under the terms herein; (2) the attendant risks and uncertainty of litigation, especially in complex actions such as this, as well as the difficulties and delays inherent in such litigation; and (3) the desirability of consummating this Settlement Agreement to provide effective relief to the Class.

U.

Defendant has denied and continues to deny each and all of the claims and

contentions alleged by Plaintiffs. Defendant has expressly denied and continues to deny all charges of wrongdoing or liability against it arising out of any of the conduct, statements, acts or omissions alleged, or that could have been alleged, in this Litigation.

V.

Nonetheless, Defendant has concluded that further defense of the Litigation

would be protracted and expensive, and that it is desirable that the Litigation be fully and finally settled in the manner and upon the terms and conditions set forth in the Settlement Agreement.

Defendant also has taken into account the uncertainty and risks inherent in any litigation.

5

Case 3:16-cv-02010-CSH Document 198-2 Filed 11/17/20 Page 6 of 20

Defendant, therefore, has determined that it is desirable and beneficial to it that the Litigation be settled in the manner and upon the terms and conditions set forth in the Settlement Agreement.

W.

This Stipulation effectuates the resolution of disputed claims and is for settlement

purposes only.

II.

DEFINITIONS As used in this Stipulation the following capitalized terms have the meanings specified

below. Unless otherwise indicated, defined terms include the plural as well as the singular.

A.

“Army Discharge Review Board” or “ADRB” means the U.S. Army board that

reviews discharges of former soldiers on the basis of issues of propriety and equity. 10 U.S.C. § 1553; 32 C.F.R. § 581.2.

B.

“Army Review Boards Agency” or “ARBA” means the U.S. Army agency that

administers the ADRB. C.

“Applicant” means any individual that seeks a discharge review through

submission of the Department of Defense Form 293 to the ADRB. D.

“Case Data” means any materials associated with an applicant’s case file, whether

submitted by the applicant or obtained or produced by the ADRB in the course of an adjudication, that were used in ARBA’s effort to identify Special Cases.

E.

“Class” or “Settlement Class” means members and former members of the Army,

Army Reserve, and Army National Guard who served during the Iraq and Afghanistan era—the period between October 7, 2001 to the Effective Date of Settlement—who: 1.

were discharged with a less-than Honorable service characterization (this

includes GEN and OTH discharges from the Army, Army Reserve, and Army National Guard, but not Bad Conduct or Dishonorable discharges); 2.

have not received discharge upgrades to Honorable; and 6

Case 3:16-cv-02010-CSH Document 198-2 Filed 11/17/20 Page 7 of 20

3.

have diagnoses of PTSD or PTSD-related conditions or records

documenting one or more symptoms of PTSD or PTSD-related conditions at the time of discharge attributable to their military service under the Hagel Memo standards of liberal and special consideration.

F.

“Class Counsel” means, collectively, the Jerome L. Frank Legal Services

Organization of Yale Law School and the law firm of Jenner & Block LLP. G.

“Class Notice” means the notice substantially in the form attached to this

Settlement Agreement as Exhibit “A”, to be provided to the Class as set forth in Section VI below.

H.

“Court” means the United States District Court for the District of Connecticut.

I.

“DD-293” means the Department of Defense Form 293, Application for the

Review of Discharge or Dismissal from the Armed Forces of the United States.

J.

“Defendant” means Ryan D. McCarthy, Secretary of the U.S. Army, in his

official capacity.

K.

“Effective Date of Settlement” means the date of the Final Approval Order.

L.

“Fairness Hearing” means the hearing to be held by the Court, pursuant to Rule

23(e) of the Federal Rules of Civil Procedure, to determine whether the settlement set forth in this Settlement Agreement should be approved.

M.

“Final Approval Order” means the order by the Court, after notice and the

holding of the Fairness Hearing, granting approval of this Settlement Agreement under Rule 23(a) of the Federal Rules of Civil Procedure, substantially in the form attached to this Settlement Agreement as Exhibit “B”.

N.

“GEN” means a character of service of General (Under Honorable Conditions).

7

Case 3:16-cv-02010-CSH Document 198-2 Filed 11/17/20 Page 8 of 20

O.

“Group A Applicants” are defined below in Section IV.A.

P.

“Group B Applicants” are defined below in Section IV.B.

Q.

“Hagel Memo” means the memorandum issued by then-Secretary of Defense

Chuck Hagel on September 3, 2014, directing all military record-correction boards to give “special consideration” to PTSD diagnoses by the U.S. Department of Veterans Affairs and “liberal consideration” to diagnoses of PTSD by civilian providers when adjudicating discharge upgrade applications submitted by veterans.

R.

“Honorable” means a character of service of Honorable.

S.

“Kurta Memo” means the memorandum issued by then-Acting Under Secretary of

Defense for Personnel and Readiness A.M. Kurta on August 25, 2017, issuing additional guidance clarifying that “[l]iberal consideration will be given to veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions.”

T.

“Kurta Factors” means the four questions provided in the Kurta Memo regarding

when requests for discharge relief is appropriate in Special Cases. (Kurta Memo, att. at 1.)

U.

“Litigation” means the lawsuit captioned Kennedy v. McCarthy, Case No. 16-

CV-02010 (D. Conn.).

V.

“Military Sexual Trauma” or “MST” means physical assault of a sexual nature,

battery of a sexual nature, or sexual harassment that occurred during military service.

W.

“Other Behavioral Health” or “OBH” means a behavioral health condition other

than PTSD or TBI and unrelated to MST. X.

“Other Than Honorable” or “OTH” means a character of service of Other Than

Honorable.

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Y.

“Person” means a natural person, individual, corporation, partnership, association,

or any other type of legal entity.

Z.

“Plaintiffs” means the class representatives Stephen M. Kennedy and Alicia J.

Carson, on behalf of themselves and each of the Class members.

AA.

“Preliminary Approval Order” means the “Order Preliminarily Approving Class

Action Settlement, Conditionally Certifying the Settlement Class, Providing For Notice and Scheduling Order,” substantially in the form of Exhibit “C” attached hereto, which, among other things, preliminarily approves this Stipulation and provides for notification to the Settlement Class and sets the schedule for the Fairness Hearing.

BB.

“PTSD” means Post-Traumatic Stress Disorder.

CC.

“Settled Claims” means all claims for relief that were brought on behalf of Class

members based on the facts and circumstances alleged in the Amended Complaint (ECF No. 11).

DD.

“Special Cases” means any application for a discharge upgrade or change in

narrative reason for separation that includes a diagnosis or allegation of, or evidence or allegations of symptoms of, PTSD, TBI, MST, or OBH. EE.

“Stipulation and Agreement of Settlement” or “Stipulation” or “Settlement

Agreement” means this agreement, including its attached exhibits (which are incorporated herein by reference), duly executed by Class Counsel and counsel for Defendant.

FF. III.

“TBI” means Traumatic Brain Injury.

CERTIFICATION OF THE SETTLEMENT CLASS The Parties agree that the Settlement Class shall be conditionally certified, in accordance

with the terms of this Settlement Agreement, solely for purposes of effectuating the settlement embodied in this Settlement Agreement. The Settlement Class differs from the class certified by

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the Court on December 21, 2018 only in that it sets the end date of the Class as the Effective Date of Settlement.

IV.

SETTLEMENT RELIEF A.

Reconsideration of 2011-2020 Applications 1.

The ADRB will automatically reconsider its decisions that meet all of the

following three criteria: (a) Special Cases, (b) issued on or after April 17, 2011 until the Effective Date of Settlement, (c) whose grant state indicates the applicant did not receive the full relief they requested. The applicants who are the subject of these decisions are defined here as Group A Applicants.

2.

To identify Group A Applicants, Defendant will conduct an electronic

search of ADRB data to identify individuals whose record “grant state” indicates they did not receive the full relief that they requested, and whose Case Data raises PTSD, TBI, MST, or OBH. Defendant has already identified about 3,500 decisions for reconsideration through this search algorithm, and will reconsider those applications as well as others that it finds after completing its searches.

3.

Defendant will send a notice, in the form of Exhibit “D”, to all Group A

Applicants at their last known address on file with ARBA. That notice, as laid out in Exhibit D, will state that the ADRB will reconsider each case without a need for further responses from the applicant; state that if the applicant wishes to supplement their application, they should submit supplemental evidence within 60 days of the notice; state that submitting medical evidence in support of the application benefits the applicant; and include information regarding available legal and medical services.

4.

Defendant will bear the cost of sending a notice in the form of Exhibit D

to Group A Applicants by mail and of posting said notice to its website. Defendant will mail the 10

Case 3:16-cv-02010-CSH Document 198-2 Filed 11/17/20 Page 11 of 20

notice to Group A Applicants within 120 days of the Effective Date of Settlement. Defendant will also publicly post the notice on ARBA’s website https://arba.army.pentagon.mil/adrboverview.html within 120 days of the Effective Date of Settlement.

5.

The ADRB will make every effort to complete its reconsideration of

Group A Applicants in a timely manner, and agrees to provide a report every six months of the number of Group A cases reconsidered and decided.

6.

Defendant agrees to provide Plaintiffs with the names and last-known

addresses (according to ARBA data) for applicants who (a) are not identified as Group A Applicants by the ADRB; and (b) whose cases were either denied or only granted partial relief by the ADRB between April 17, 2011 and September 4, 2014. These names and addresses will be subject to the Protective Order in effect for this Litigation, and will be provided to Plaintiffs within 90 days of the Effective Date of Settlement. Plaintiffs will send a notice, in the form of Exhibit “E”, to individuals on this list of names and addresses, informing them of their right to reapply and referring to the Class Notice. Plaintiffs will bear the cost of mailing notice in the form of Exhibit E. The notices sent by Plaintiffs will not include the name of any of Plaintiffs’ counsel, including on any mailing information (e.g., return address, non-profit mailing indicia).

B.

Notice of Reapplication Rights for 2001-2011 Applicants 1.

Defendant agrees to facilitate mailing notices to the last known addresses

of ADRB applicants for whom the ADRB’s decisions meet all of the following three criteria: (a) are Special Cases, (b) were issued between October 7, 2001 and April 16, 2011, and (c) whose grant state indicates they did not receive the full relief they requested. The applicants who are the subject of these decisions are defined here as Group B Applicants.

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2.

To identify Group B Applicants, the ADRB will conduct an electronic

search of ADRB data to identify individuals whose record “grant state” indicates they did not receive the full relief that they requested, and whose Case Data raises PTSD, TBI, MST, or OBH. For most cases in the 2001–2004 timeframe, the only grant states recorded were “grant” or “deny.” For these cases, “deny” will be used as the grant state indicating the applicant did not receive the full relief they requested. Defendant will provide the names of Group B Applicants from October 7, 2001 through April 16, 2011 within 90 days of the Effective Date of Settlement.

3.

Defendant will provide the names and last known addresses (according to

ARBA data) of Group B Applicants to Plaintiffs. Plaintiffs will then mail a notice in the form of Exhibit “F” to Group B Applicants. That notice, as laid out in Exhibit F, will state that the applicant may reapply to the ADRB, or to the ABCMR if the applicant’s discharge date is beyond the ADRB 15-year statute of limitations, 10 U.S.C. § 1553, for reconsideration of their case; state that should the applicant wish to supplement their application, they will have the opportunity to do so; state that submitting medical evidence in support of the application benefits the applicant; include information regarding available legal and medical services; and refer to the Class Notice. Plaintiffs will bear the cost of mailing this notice to Group B Applicants, paid out of the attorneys’ fees and costs set forth in V(A) below. The notices sent by Plaintiffs will not include the name of any of Plaintiffs’ counsel, including on any mailing information (e.g., return address, non-profit mailing indicia).

C.

Online Notice of Reapplication Rights for 2001-2011 Applicants and

Reconsideration for 2011-2020 Applicants 1.

Defendant will post notice of reapplication rights for 2001-2011

Applicants and reconsideration for 2011-2020 Applicants, in the form of Exhibit “G”, on its

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website, including at https://arba.army.pentagon.mil/adrb-overview.html, https://arba.army.pentagon.mil/adrb-faq.html, within 45 days of the Effective Date of Settlement.

D.

Revised Decisional Documents & Procedures 1.

The Army agrees to adopt the following language and procedure, to be

incorporated as quoted below into the Military Review Boards Standard Operating Procedures: If the Board concludes that there is insufficient evidence per the four factors in paragraph two (2) of the Kurta Memo (“Kurta Factors”), including that the evidence in mitigation does not outweigh the severity of misconduct, so as to grant a full upgrade to Honorable in any Special Case, the Board must, in the decision document sent to the veteran (a) respond to each of the applicant’s contentions; (b) describe the evidence on which it relied on consideration of each of the applicable Kurta Factors; (c) explain why it decided against the veteran with respect to each applicable Kurta Factor; (d) ensure it draws a rational connection between facts found and conclusions drawn; and, (e) distinguish any prior Board decisions cited by the applicant in accordance with applicable law and regulations.

2.

The Army will revise processing language in the ADRB’s decisional

document template to include the Kurta Factors, consistent with the above modifications to the Military Review Boards Standard Operating Procedures.

3.

The Army will consider (a) issuing a guidance memo describing the

revised Standard Operating Procedure requirements stated above and/or (b) revising the format of the ADRB voting sheet to address the same. The Army will inform Class Counsel regarding any final determination made to issue or not issue any guidance memo or to revise or not revise any ADRB voting sheet after consideration made in accordance with this paragraph.

E.

Universal Option for Telephonic Personal Appearance Boards 1.

Defendant will complete implementation of a Telephonic Personal

Appearance Board Program for the ADRB within 18 months of the Final Approval Order, available to all applicants who request a Personal Appearance hearing. Applicants will be

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invited to opt-in to a telephonic ADRB hearing in the letter acknowledging receipt of their DD293 application. Applicants will have an opportunity to participate in telephonic hearings from their personal residences, or other location of their own choice.

2.

At each of six, twelve, and eighteen months after the Effective Date of

Settlement, the Army shall report to the Court and to Plaintiffs its progress in implementing the Telephonic Personal Appearance Board Program. The report shall include, but is not limited to: (a) steps the Army has taken, is taking, and will take to facilitate applicants’ access to telephonic personal appearance with minimal, if any, travel; (b) steps the Army has taken, is taking, and will take to enable applicants to access telephonic hearings year-round; (c) the number of telephonic hearings completed during the prior six months; and (d) the location of hearings not chosen by the applicant, and the number of hearings in those locations.

F.

Training 1.

The Army agrees to conduct annual training for ADRB members and staff

specifically tailored to Special Cases.

2.

This training will include changes made as a result of this Settlement

Agreement, including training on the revised Military Review Boards Standard Operating Procedures.

G.

Notice for New Applications 1.

For all discharge upgrade applications submitted to the ADRB after the

Effective Date of Settlement, when the Board writes the applicant to acknowledge receipt of a submitted DD-293, the Board letter shall inform applicants of how to find legal counsel and Veterans Service Organizations to assist with their application. The notice shall include a link for Stateside Legal, www.statesidelegal.org, and a link to the Department of Veterans Affairs

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Case 3:16-cv-02010-CSH Document 198-2 Filed 11/17/20 Page 15 of 20

“Directory of Veterans Service Organizations,” https://www.va.gov/vso/. This list of resources shall be updated by the Board as needed.

2.

The notice shall also (a) state that the applicant may seek out and provide

additional medical evidence of their Special Case condition, and state that it is to applicant’s benefit to provide medical evidence for the review process; (b) invite the applicant to provide such evidence within 45 days of the date the notice is sent; and (c) advise the applicant of their right under 38 U.S.C. § 1720I to obtain mental health evaluation and treatments at Department of Veterans Affairs facilities. Defendant agrees that an ADRB applicant’s failure to submit additional evidence shall not prejudice the applicant’s ADRB application, and shall not be referenced for the purpose of evaluating the applicant’s claims.

V.

ATTORNEYS’ FEES AND COSTS With respect to the issue of attorneys’ fees and costs incurred by Plaintiffs and the

payment thereof by Defendant, the Parties agree to the following as a complete resolution of the issue.

A.

Defendant agrees to pay $185,000 in attorneys’ fees and costs to Class Counsel.

B.

Defendant agrees to submit payment of attorneys’ fees to Class Counsel within 90

days of either (a) the Effective Date of Settlement, or (b) Defendant’s receipt of Class Counsel information (including banking information) necessary to effectuate the attorneys’ fee transfer, whichever occurs later.

VI.

NOTICE AND APPROVAL PROCEDURE A.

Preliminary Approval. As soon as practicable after the execution of this

Agreement, the Parties shall jointly move for a Preliminary Approval Order, substantially in the form of Exhibit C, preliminarily approving this Settlement Agreement and this settlement to be fair, just, reasonable, and adequate, approving the Class Notice to the Class members as 15

Case 3:16-cv-02010-CSH Document 198-2 Filed 11/17/20 Page 16 of 20

described infra Section VI.C, and setting a Fairness Hearing to consider the Final Approval Order and any objections thereto.

B.

Effect of the Court’s Denial of the Agreement. This Settlement Agreement is

subject to and contingent upon Court approval under Rule 23(e) of the Federal Rules of Civil Procedure. If the Court rejects this Agreement, in whole or in part, or otherwise finds that the Agreement is not fair, reasonable, and adequate, Parties agree to meet and confer to work to resolve the concerns articulated by the Court and modify the agreement accordingly. Except as otherwise provided herein, in the event the Settlement Agreement is terminated or modified in any material respect or fails to become effective for any reason, then the Settlement Agreement shall be without prejudice and none of its terms shall be effective or enforceable; the Parties to this Settlement Agreement shall be deemed to have reverted to their respective status in the Action as of the date and time immediately prior to the execution of this Settlement Agreement; and except as otherwise expressly provided, the Parties shall proceed in all respects as if this Settlement Agreement and any related orders had not been entered. In the event that the Settlement Agreement is terminated or modified in any material respect, the Parties shall be deemed not to have waived, not to have modified, or not be estopped from asserting any additional defenses or arguments available to them. In such event, neither this Settlement Agreement nor any draft thereof, nor any negotiation, documentation, or other part or aspect of the Parties’ settlement discussions, nor any other document filed or created in connection with this settlement, shall have any effect or be admissible in evidence for any purpose in the Litigation or in any other proceeding, and all such documents or information shall be treated as strictly confidential and may not, absent a court order, be disclosed to any person other than the Parties’ counsel, and in any event only for the purposes of the Litigation.

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Case 3:16-cv-02010-CSH Document 198-2 Filed 11/17/20 Page 17 of 20

C.

Notice for Fairness Hearing. Not later than 14 business days after entry of the

Preliminary Approval Order (unless otherwise modified by the Parties or by order of the Court), the Parties shall effectuate the following Class Notice.

1.

Plaintiffs shall post the Class Notice substantially in the form of Exhibit

A, as well as a copy of the Settlement Agreement, on www.kennedysettlement.com.

2.

The Army shall post the Class Notice substantially in the form of Exhibit

A, including a copy of the Settlement Agreement, on https://arba.army.pentagon.mil/adrboverview.html.

3.

The Army shall issue a press release that describes the Class Notice and

provides a link to the website listed in Section VI.C.2.

D.

Objections to Settlement. On or before 21 calendar days before the Fairness

Hearing, in the above-described manner, any Class member who wishes to object to the fairness, reasonableness, or adequacy of this Settlement Agreement or the settlement contemplated herein must file with the Clerk of Court and serve on the Parties a statement of objection setting forth the specific reason(s), if any, for the objection, including any legal support or evidence in support of the objection, grounds to support their status as a Class member, and whether the Class member intends to appear at the Fairness Hearing. The Parties will have 14 days following the objection period in which to submit answers to any objections that are filed. The notice to the Clerk of the Court shall be sent to: Clerk of the Court, U.S. District Court of Connecticut, 141 Church Street, New Haven, CT 06510; and both envelope and letter shall state: “Attention: Kennedy v. McCarthy, No. 3:16-cv-2010 (D. Conn.).� Copies shall also be served on counsel for Plaintiffs and counsel for Defendants.

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Case 3:16-cv-02010-CSH Document 198-2 Filed 11/17/20 Page 18 of 20

E.

Fairness Hearing. At the Fairness Hearing, as required for Final Approval of the

settlement pursuant to Federal Rule of Civil Procedure 23(e)(2), the Parties will jointly request that the Court approve the settlement as final, fair, reasonable, adequate, and binding on the Class, all Class members, and all Plaintiffs.

F.

Opt-Outs. The Parties agree that the Settlement Class shall be certified in

accordance with the standards applicable under Rule 23(b)(2) of the Federal Rules of Civil Procedure and that, accordingly, no Settlement Class member may opt out of any of the provisions of this Settlement Agreement.

G.

Final Approval Order and Judgment. At the Fairness Hearing, the Parties shall

jointly move for entry of the Final Approval Order, substantially in the form of Exhibit B, granting final approval of this Agreement to be final, fair, reasonable, adequate, and binding on all Class members; overruling any objections to the Settlement Agreement; ordering that the terms be effectuated as set forth in this Settlement Agreement; and giving effect to the releases as set forth in Section VII. VII.

RELEASES A.

As of the Effective Date, the Plaintiffs and the Class members, on behalf of

themselves; their heirs, executors, administrators, representatives, attorneys, successors, assigns, agents, affiliates, and partners; and any persons they represent, by operation of any final judgment entered by the Court, shall have fully, finally, and forever released, relinquished, and discharged the Defendant of and from any and all of the Settled Claims, and the Plaintiffs and the Class members shall forever be barred and enjoined from bringing or prosecuting any Settled Claim against any of the Defendants, and all of their past and present agencies, officials, employees, agents, attorneys, and successors. This Release shall not apply to claims that arise or accrue after the effective date of Agreement.

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B.

In consideration of the terms and conditions set forth herein, Plaintiffs hereby

release and forever discharge Defendant, and all of their past and present agencies, officials, employees, agents, attorneys, successors, and assigns from any and all obligations, damages, liabilities, causes of action, claims, and demands of any kind and nature whatsoever, whether suspected or unsuspected, arising in law or equity, arising from or by reason of any and all known, unknown, foreseen, or unforeseen injuries, and the consequences thereof, resulting from the facts, circumstances and subject matter that gave rise to the Litigation, including all claims that were asserted or that Plaintiffs could have asserted in the Litigation.

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AGREED TO: FOR PLAINTIFFS:

By: Susan J. Kohlmann, pro hac vice Jeremy M. Creelan, pro hac vice Jacob L. Tracer, pro hac vice Ravi Ramanathan, pro hac vice Jenner & Block LLP 919 Third Avenue New York, NY 10022-3908 Tel: (212) 891-1678 JCreelan@jenner.com

Joshua P. Britt, Law Student Intern Rebecca Brooks, Law Student Intern Andrew C. DeGuglielmo, Law Student Intern Deepankar Gagneja, Law Student Intern Renée A. Burbank, ct30669 Dana Montalto, ct30941 Michael J. Wishnie, ct27221 Veterans Legal Services Clinic Jerome N. Frank Legal Services Organization Yale Law School P.O. Box 209090 New Haven, CT 06520-9090 Tel: (203) 432-4800 michael.wishnie@ylsclinics.org Counsel for Plaintiffs

FOR DEFENDANTS:

JOHN H. DURHAM UNITED STATES ATTORNEY By: /s/ Natalie Elicker Natalie Nicole Elicker Assistant U.S. Attorney Kyle Montague Meisner Major, U.S. Army Counsel for Defendant

_

ATTENTION ALL FORMER MEMBERS OF THE ARMY, ARMY RESERVE, AND ARMY NATIONAL GUARD WHO HAVE SERVED SINCE OCTOBER 7, 2001, AND WHO WERE DISCHARGED WITH A LESS-THAN-HONORABLE SERVICE CHARACTERIZATION WHILE HAVING A DIAGNOSIS OF, OR SHOWING SYMPTOMS ATTRIBUTABLE TO, PTSD OR PTSDRELATED CONDITIONS: YOUR RIGHTS MAY BE AFFECTED BY A PROPOSED SETTLEMENT IN THE KENNEDY CLASS ACTION. PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 23(e) YOU ARE NOTIFIED AS FOLLOWS: UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT --------------------------------------------------STEPHEN M. KENNEDY and ALICIA J. CARSON, et al., Plaintiffs,

No. 3:16-cv-2010-CSH

-againstRYAN D. McCARTHY, Acting Secretary of the Army, Defendant.

---------------------------------------------------

BACKGROUND In 2017, plaintiffs Stephen Kennedy and Alicia Carson (“Plaintiffs”) filed an Amended Complaint alleging that since the start of military operations in Iraq and Afghanistan, the Army discharged thousands of people with Other Than Honorable (“OTH”) or General (Under Honorable Conditions) (“GEN”) statuses due to misconduct attributable to post-traumatic stress disorder (“PTSD”), traumatic brain injury (“TBI”), military sexual trauma (“MST”), and other 1

behavioral health conditions (“OBH”). Specifically, the Amended Complaint alleged that upon their return from Iraq and Afghanistan, veterans with service-connected PTSD, TBI, and other related mental health conditions received OTH and GEN discharges and were systematically denied status upgrades by the Army Discharge Review Board (“ADRB”).

The Amended Complaint further alleged that these veterans were denied status upgrades even as scientific and medical understandings of PTSD and TBI advanced and explained how these conditions can affect Soldiers’ behavior. Plaintiffs further alleged that, despite the 1944 statute creating the ADRB, longstanding regulations, and binding Department of Defense guidance that clarified the ADRB’s obligation to give liberal consideration to the applications of former Soldiers who incurred these mental health conditions, the ADRB systematically failed to apply appropriate decisional standards or provide veterans with due consideration, in violation of the Administrative Procedure Act and the Due Process Clause of the Fifth Amendment.

Defendant has denied and continues to deny each and all of the claims and contentions alleged by Plaintiffs. Defendant has expressly denied and continues to deny all charges of wrongdoing or liability against it arising out of any of the conduct, statements, acts or omissions alleged, or that could have been alleged by Plaintiffs. The Defendant specifically denies the allegations in the Amended Complaint, including any allegation that the Army violated the APA or failed to follow appropriate procedures, that the allegedly relevant DOD guidance was binding on the ADRB, that the Army otherwise acted arbitrarily and capriciously, that the Plaintiff’s raised an actionable Due Process/Fifth Amendment claim, and all other allegations of wrongdoing.

The Court has certified a settlement class in this civil action (“The Settlement Class”), defined as follows: “Members and former members of the Army, Army Reserve, and Army National Guard who served during the Iraq and Afghanistan era — the period between October 7, 2001 to the Effective Date of Settlement — who (1) were

discharged

with

a

less-than-Honorable

service

characterization (this includes GEN and OTH discharges from the Army, Army Reserve, and Army National Guard, but not Bad Conduct or Dishonorable discharges); (2) have not received discharge upgrades to Honorable; and 2

(3) have diagnoses of PTSD or PTSD-related conditions or records documenting one or more symptoms of PTSD or PTSDrelated conditions at the time of discharge attributable to their military service under the Hagel Memo standards of liberal and special consideration.”

The Court named Plaintiffs as class representatives in this civil action and the Jerome L. Frank Legal Services Clinic of Yale Law School and Jenner & Block LLP as Class Counsel (“Class Counsel”). Throughout 2019 and 2020, Plaintiffs and Defendant engaged in motion practice and discovery, and eventually settlement negotiations supervised by the Court. After extensive arm’s-length negotiations and exchanges of multiple proposals, Plaintiffs and Defendant reached an agreement in principle (“Joint Settlement Agreement”) on November 17, 2020, to settle the claims in the Amended Complaint. The Joint Settlement Agreement, if approved by the Court, will settle the claims in the Amended Complaint in the manner and upon the terms summarized and described below.

SUMMARY OF SETTLEMENT TERMS The full text of the proposed Joint Settlement Agreement can be viewed at https://arba.army. pentagon.mil/adrb-overview.html.

Automatic Reconsideration for Certain 2011-2020 Applicants and Reapplication Rights for Certain 2001-2011 Applicants •

The ADRB will automatically reconsider its decisions that meet all of the following three criteria: (a) Special Cases (cases that include a diagnosis or allegation of, or evidence or allegations of symptoms of, PTSD, TBI, MST, or OBH), (b) issued on or after April 17, 2011 until the Effective Date of Settlement, (c) whose grant state indicates the applicant did not receive the full relief they requested. The Defendant will identify these applicants by conducting an electronic search of ADRB data to identify individuals whose record “grant state” indicates they did not receive the full relief that they requested, and whose Case Data raises PTSD, TBI, MST, or OBH.

•

The Army will send notice of this automatic reconsideration process to all eligible applicants, inviting them to submit additional evidence within 60 days of the notice date 3

to ensure that new evidence is considered when their application is reviewed and providing them with referral information for potential free legal representation. This notice will be posted to https://arba.army.pentagon.mil/adrb-overview.html and https://www.kennedysettlement.com, and sent to eligible veterans within 120 days of the date the settlement is approved.

•

Previous applicants to the ADRB who are not eligible for automatic reconsideration according to the paragraph above, and whose cases were either denied or only granted partial relief by the ADRB between April 17, 2011, and September 4, 2014, are eligible to reapply to the ADRB. Plaintiff will send notice to these applicants informing them of their right to reapply, including referral information for potential free legal representation.

•

Previous applicants to the ADRB whose applications (a) are Special Cases, (b) were issued between October 7, 2001 and April 16, 2011, and (c) whose grant state indicates they did not receive the full relief they requested, have the right to apply anew to the ADRB or, if the applicant was discharged more than 15 years ago, to the Army Board for Correction of Military Records. This is because the ADRB’s statute of limitations is 15 years. The Defendant will identify these applicants by conducting an electronic search of ADRB data to identify individuals whose record “grant state” indicates they did not receive the full relief that they requested, and whose Case Data raises PTSD, TBI, MST, or OBH. For most cases in the 2001–2004 timeframe, the only grant states recorded were “grant” or “deny.” For these cases, “deny” will be used as the grant state indicating the applicant did not receive the full relief they requested.

•

The Army will provide contact information to the Plaintiffs for previous applicants eligible to reapply to the ADRB, and Plaintiffs will send notice to these previous applicants providing referral information for potentially free legal representation and informing them of their right to reapply.

•

Defendant will post notice of reapplication rights for 2001-2011 applicants and reconsideration for 2011-2020 applicants on its website, including at https://arba.army.pentagon.mil/adrb-overview.html and https://arba.army.pentagon.mil/ adrb-faq.html, within 45 days of the date the settlement is approved.

4

Revised Decisional Documents & Procedures •

Defendant agrees to incorporate new language and procedures into the Military Review Boards Standard Operating Procedures that governs applications including a diagnosis or allegation of, or evidence or allegations of symptoms of, PTSD, TBI, MST, or OBH. If the ADRB finds that there is insufficient evidence per the four factors (“Kurta Factors) set forth in paragraph two (2) of the Kurta Memorandum issued on August 25, 2017 to warrant a grant of a full upgrade to Honorable, including that the evidence in mitigation does not outweigh the severity of misconduct in these applications, the Board must, in the decisional document sent to the applicant: o respond to each of the applicant’s contentions; o describe the evidence on which it relied on consideration of each of the applicable Kurta Factors;

o explain why it decided against the veteran with respect to each applicable Kurta Factor; o ensure it draws a rational connection between facts found and conclusions drawn; and o distinguish any prior Board decisions cited by the applicant in accordance with applicable law and regulations.

•

Defendant will revise the decisional document template used by the ADRB to reflect the new language and procedures and will consider revising the ADRB voting sheet and/or issuing a guidance memo explaining these new procedures.

•

Defendant will conduct annual training for ADRB members and staff tailored to applications that include a diagnosis or allegation of, or evidence or allegations of symptoms of, PTSD, TBI, MST, or OBH. This training will include information on the new procedures in the Joint Settlement Agreement and the telephonic hearings program.

Universal Option for Telephonic Personal Appearance Board Program

•

Defendant will implement a Telephonic Personal Appearance Board Program for the ADRB within 18 months of the final approval of the settlement. All applicants who request a Personal Appearance hearing will be eligible for this telephonic program and 5

may elect to participate in a telephonic hearing from their personal residences or other location of their own choice.

Notice for New Applications For all discharge upgrade applications submitted to the ADRB after the date the

•

settlement is approved, when the Board writes the applicant to acknowledge receipt of their application, the Board letter will inform the applicant of how to find legal counsel and Veterans Service Organizations to assist with their application.

This notice will also encourage applicants to seek out and provide additional evidence

•

related to an applicant’s possible diagnosis or allegation of, or evidence or allegations of symptoms of, PTSD, TBI, MST, or OBH. The notice will provide information helping applicants to submit this additional evidence and informing them that they may be able to obtain mental health evaluation and treatment at Department of Veterans Affairs facilities.

Attorneys’ Fees and Costs If the settlement is approved by the Court, defendant agrees to pay $185,000 in attorneys’

•

fees and costs to Class Counsel. A portion of these fees will be used by Class Counsel to pay for the production and mailing of notices to some members of the class informing them of their right to reapply to the ADRB.

THE SETTLEMENT HEARING A.

Before the settlement can become final, it must be approved by the Court. Any affected

person may comment for or against the proposed settlement.

B.

In order to give class members an opportunity to express their comments in support or

objection to the settlement, a hearing will be held before the Hon. Charles S. Haight, Jr., via the videoconferencing software Zoom on March 24, 2021 at 10:00 a.m. Eastern Time. Class members or

their

attorneys

can

attend

the

hearing

using

the

following

link,

https://www.zoomgov.com/j/1617763525?pwd=dmpTVnRSL2xGZ3J2MVBXYVhlVlVjZz09, or by dialing in to +1 (646) 828-7666. The meeting ID for the hearing is 161 776 3525 and the passcode is 071273.

6

C.

If you wish to comment for or against the settlement, you must serve by hand, mail, or

e-mail your written objection and support papers, including any legal support for your objection and your status as a class member, upon Class Counsel: Michael J. Wishnie, Jerome N. Frank Legal Services Organization, Yale Law School, P.O. Box 209090, New Haven, CT 06520-9090, kennedy.settlement@yale.edu; and Defendant’s Counsel: Natalie N. Elicker, U.S. Attorney’s Office for the District of Connecticut, 157 Church St, 25th Floor, New Haven, CT 06510, Natalie.Elicker@usdoj.gov; and also file these documents with the Clerk of the Court: United States District Court for the District of Connecticut, 141 Church Street, New Haven, CT 06510.

All written objections must be received by March 3, 2021. Objections or comments will not be considered by the Court unless you have given notice in the manner described. If you intend to object to the Settlement and desire to present evidence at the fairness hearing, you must include in your written objections the identity of any witnesses you may call to testify and the exhibits you intend to introduce into evidence at the fairness hearing. If you fail to object in the manner described you shall be deemed to have waived such objection and shall forever be foreclosed from making any objection to any aspect of the Settlement, unless otherwise ordered by the Court. You may present your comments yourself or you may have an attorney present them for you. You are invited to attend the hearing whether or not you have given notice that you want to comment on the settlement.

D.

This settlement, if approved by the Court, will be a full and final adjudication of the

issues raised on behalf of the settlement class in the Amended Complaint and of any and all claims resulting from the facts, circumstances and subject matter that gave rise to the Amended Complaint and that were known to Class Counsel on the date the settlement is approved.

Dated:

New Haven, CT January 11, 2021

7

Army to review discharges and status-upgrade procedures for behavioral health conditions The U.S. Army has agreed to review the discharges of thousands of veterans affected by post-traumatic stress disorder, traumatic brain injury, military sexual trauma or other behavioral health conditions, and to change some of its administrative procedures for individuals who apply to have their discharge statuses upgraded in the future. This agreement follows a settlement reached in the nationwide classaction lawsuit Kennedy v. McCarthy. A federal court preliminarily approved the agreement on Dec. 28, 2020.

Under the agreement, the Army will automatically reconsider certain discharge-status-upgrade decisions made by the Army Discharge Review Board between April 17, 2011, and the effective date of settlement that partially or fully denied relief to Iraq- and Afghanistan-era veterans with less-than-fully-honorable discharges. The settlement also expands reapplication rights for eligible applicants who were discharged and received an adverse ADRB decision between Oct. 7, 2001, and April 16, 2011.

In addition, the Army will implement other procedures, including a program to enable applicants to appear telephonically before the ADRB, more training for board members and updated protocols for decision making in cases involving symptoms or diagnoses of PTSD, TBI, MST or other behavioral health conditions.

Veterans of the Army, including the National Guard and Reserve, who were discharged with a less-thanfully-honorable service characterizations while having a diagnosis of, or showed symptoms of, the conditions listed above may be eligible for relief. Discharge upgrades are not guaranteed and applications will be decided on a case-by-case basis.

A video teleconference hearing on the settlement agreement on Wednesday, March 24, 2021, at 10:00 a.m. ET will address whether to grant final approval to the settlement, whether to issue a final order dismissing the lawsuit and other issues. Persons affected by the settlement may submit written comments and/or appear themselves or through counsel to be heard in support of or in opposition to aspects of the settlement. Persons wishing to object must follow specific procedures, which are outlined on the websites listed below.

A court-approved class notice, the full text of the settlement and information about the court’s hearing can be found at http://www.kennedysettlement.com and https://arba.army.pentagon.mil/adrboverview.html.

For more information, please contact the Yale Veterans Legal Services Clinic at kennedy.settlement@yale.edu or (203) 364-4588, or visit https://arba.army.pentagon.mil/adrboverview.html. ###

BENEFITS AT ~

Honorable

DD Form 256A

SEPARATION .

~Iigible

General Under Honorable Condi/ioll.f DD Fonn 257A "4"

NE Not Eligible THO To be detennined by Administering Agency OV EligibilitY for these benefits depend upon specific disabilities of the veteran

-

-

Genera/Colly/-Mania/I "6" ."

1. Payment for Accrued Leave 2. Death Gratuity (six months pay) 3. Wearing of Military Uniform 4. Admission to Soldiers' Home "I" S. Burial in Army National Cemeteries 6. Burial in Army Post Cemeteries "2" 7. Army Board for Correction of Military Records 8. Army Discharge Review Board 9. Transportation to Home "3" 10. Transportation of Dependents and Household

E E E E E E E E E E

E E E E E E E E E E

I. 2.

3.

4.

5.

6.

7.

8.

9.

E E E E E E E E E E E E E E E E E E E E E E E E E E E

Pre-separation Counseling Employment Assistance Health Benefits Commissary/Exchange Military Family Housing Oveneas Relocation Assistance ExcessLeave/PermissiveTOY Preference for USAR/ARNG Montgomery G.I. Bill (Additional Opportunity)

1. Dependencyand Indemnity Compensation 2. Pension for Non-Service Connected Disability or Death 3. Medal of Honor Roll Pension 4. Insurance 5. Vocational Rehabilitation (DV) 6. Educational Assistance 7. Survivors & Dependents Educational Assistance 8. Home and other Loans 9. Hospitalization & Domiciliary Care 10. Medical and Dental Services 11. Prosthetic Appliances (DV) 12. Guide Dogs & Equipment For Blindness (DV) 13. Special Housing (DV) 14. Automobiles (DV) 15. Funeral and Burial Expenses 16. Burial Flag 17. Burial in National Cemeteries 18. Headstone Marker

.

.r---

1. Preference for Farm Loan (Dept. of Agriculture) 2. Preference for Farm & other Rural Housing Loans (Dept. of Agriculture) 3. Civil Service Preference "13" (Office of Personnel Management) 4. Civil Service Retirement Credit 5. Reemployment Rights (Dept. of Labor) 6. Job Counseling & Employment Placement (Dept. v. ~-7. Unemployment Compensation for Ex-Service members (Dept. of Labor) 8. Naturalization Benefits (Dept. of Justicelromigration & NaturalizationService) 9. Old Age, Survivors & Disability Insurance (Social SecurityAdministration) 10. Job Preference, Public Works Projects "13" (Dept. of Commerce)

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(IIy 10.,md co.ut-mo.nal cbo,..-) will beinel;giblerowb fi.. odm;n;.,..al by'" Depo.oDe..tofVAtTain(DVA) 3BUSC3103 "." Incl..w,. c...m;,,; ondw OII' m.o havebooncoo.;aed"" om""" 10w...;..oI Jt of cowa.owIioI. s.. AR ~24. a.opterS

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NE E NE NE NE NE E TBD"8"

NE E NE NE NE NE E NE "9" E THO "8"

NE NE NE NE NE NE E NE E THO "8"

37 USC 501-503; DODPEM Par. 40401.

10 USC 1480; DODPEM Par. 4050lb 10 USC 771a.772; AR 670-1 24 USC49. 50 38USC 1002; AR 290-5 AR 210-190 10USC 1552: AR 15-185 10 USC 1553; AR 15-180 37 USC 404: JTR par. U7500-7506 37 USC 406; JTR par. U5225. par. U5370

E E E E E E E E NE

E E NE NE NE NE NE NE NE

E E NE NE NE NE NE NE NE

E NE NE NE NE NE NE NE NE

10 USC 10 USC 10 USC 10 USC 10 USC 10 USC 10 USC 10 USC 38 USC

E E E E E NE E E E E E E E E E E E E

E TBD TBD TBD"II" TBD NE E TBD TBD TBD TBD TBD TBD TBD TBD TBD TBD TBD

E TBD TBD TBD "II" TBD NE E TBD TBD TBD TBD TBD TBD TBD TBD TBD TBD TBD

NE NE NE THO "11" NE NE NE NE NE NE NE NE NE NE NE NE NE NE

38 USC 410(b) 38 USC 521; 38 USC 3103 38 USC 562; 38 USC 3103 38 USC 711, 773; AR 608-2 38 USC 1502, 1503 38USC 1411 38 USC 1701-1765 38 USC 1802, 1818 38 USC 610; 38 USC 3103 38 USC 612; 38 USC 3103 38 USC 614; 38 USC 612(b); 38 USC 3103 38 USC 614; 38 USC 3103 38 USC 801; 38 USC 3103 38 USC 1901; 38 USC 3103 38 USC 902; 38 USC 3103 38 USC 901; 38 USC 3103 38 USC 1002 38 USC 906; 38 USC 3103

E E

Section Section Section Section Section Section Section Section Section

1142 1143.1144 1145 1146 1147 1148 1149 1150 3011

-

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E E

E E

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NE NE

7 USC 1983(5) 42 USC 1477

E

E

NE

NE

NE

5 USC 2108, 3309-3316, 3502, 3504

E E E E

NE E E E

NE NE E NE

NE NE E NE

NE NE NE NE

5 USC 8331, 8332 38 USC 2021-2026 38 USC 2001-2014 5 USC 8501,8521

E

E

NE

NE

NE

8 USC 1439, 1440; AR 608-3, par, 2-2-3

E

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42USC417

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TBD

NE

42 USC 6706; 13 CFR.317.35

E E

"7" AdditicxIaJ ..finclude Q.,. a V ; Rights, Benefits and Obfigations, DA Pam 3~S26; and Fcdcnl Benefits for V-.n. and Depaldents, (VA Fact SIocet IS-I) "S" To bedetcrmincd bytJ,. s...aaryoftJ,.

Azmy 00 1:aSe-by-CBSebas;s "9" 00Iy if tJ,. BOO CoIxIoct Discbg. was a =011 of IXXlvictioo by GononI Court-Martial "11r Benefitsftom dte ~ofVell;ransAff,;, notpayabl.to (I) a potSOD discilaIg..l as a cmsciootiws objoc1lJc \.I1O..fused to Ffonn military doty or refused to ~ dte onifonn or.-h..wi.. comply ",th lawful otdcn

of com_,

military

aothority,

(2) by

of a senreoce of a

goooral courtolnartial, (3)=ignatioo byaooff_fortJ,. goodoftJ,.

SOIvice, (4) as a doscrtcr, and(S) as a aJion dming a pcrioo ofhostiliti~ 38 USC 3103 A discilaIg. (I) by aa:optance of ao 0IJ... than IIc.IOrabIo disc~. to avoid caIrt-mania1 (2) for mutiny or '!'}inS, (3) for a f.looy olf involving moraJllupitudo,(4) formllfol and pt2'istonlmisrolKlucl, or(S) for homosoxuaJ acts, involving aggfUVating c;rcumstancos or othcr f.cto" mil be coos;denxl to have booo i~uod under dishoo<Xablo conditions BOd th...by bur veiemns bonofits 38 CFR 312 A discharge under dishmorabl. cooditions from 000 pcrioo of savice does not bur paymool if th... is aooth.r pcrilKl of eligible ..-vice 00 which tho claim may be pmli(3~ (Administrotor's Decision,

Vetemns Admin

N"

6SS, 20 Iuo.

1945)

"II" Any penon gullly ofmutiny, ~ing, ur desertion,or who, because of amsambous objcc:tioos,reru... 10pertonn ..vice in docArmed For= or refuses10w= doclmiform shall forfeit ull rights 10National ServiceLife Ins aDds..-icem=ber., Group Life I ,.

38USC711, m "12" AppliestoPost.1917..viceonly fusw917..vicequulifleSfor Scxial SeeurilybenefitsrcgardIea of~])O of di~~e, Prc-1917service wIOOrconditions aIM thao di_ble qwllifles' ,...;ec member for a military ""ge credit for s..,iul SeeurilyPUIPO"'" "13" DisabledaDdVidJlam-elO~ 001.' Post-VieUlamVeteransare diosem.o f"" mla'-' on aetiv~dutYas or first bex:ame membe.. of die AzmedFm=an..Ma, 71971 To be eligible, they must have servedfor a period ofmore dIaD108~..:Iive duly and have odler dlan a dishonorabledio:harge The I HO~'..vice rcquircmmt doesnot apply 10(I) veterans_cd from .eti,~ duty becauseof a serviceoCOnneeted dimbility, or (2) r=rve.nd guanl memben "no =cd on IK:tiveduly (wIOOr10USC 6728-d nr g 673, or 673b) during a period of".. (suchas docp,..ion GulfW,r) nr in a military o...,.,ion forwhieh. eompaignoreC'(peditiOD8f)' medaljs.uthori"14" Trnnsitionalbendits and soni... are a,.il.ble onlv 10soldi," s~ted involuntarily, ODd..other than.d,crse e..1ditions

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