Disorder Discharge Lawsuit

BY TOM BERGER, VHC EXECUTIVE DIRECTOR

On December 3, 2012, in Hartford, Conn., Vietnam Veterans of America joined a class action lawsuit against the Army, Navy, and Air Force. The lawsuit was first filed last year by John Shepherd, a Vietnam veteran from New Haven, who says he was diagnosed with PTSD in 2004 but has been repeatedly denied a discharge upgrade.

The Army awarded Shepherd a Bronze Star after his unit came under intense fire and he entered an enemy bunker and threw a grenade that killed several enemy soldiers, according to the lawsuit. Afterward, and after witnessing the gruesome deaths of several comrades, Shepherd developed symptoms of PTSD. He began to act strangely and was found wandering around a base in a confused state. Eventually, he reached a breaking point and refused to go back out into the field. He was charged with failure to obey an order and was discharged. The Army has stated he failed to present convincing evidence that his misconduct forty-three years ago was the result of PTSD or that his discharge was improper.

The lawsuit contends that the military has refused to review or upgrade the discharge statuses of thousands of Vietnam War-era veterans with service-related PTSD. It claims that Vietnam veterans suffered PTSD before the condition was recognized and were discharged under other-than-honorable conditions that made them ineligible for disability compensation and other benefits.

‘‘The military has failed to apply consistent and medically appropriate standards to assess the impact of service-related PTSD on the conduct that led to discharge, resulting in the defendants’ discriminatory and near-categorical denial of discharge upgrade applications by Vietnam veterans who served in theater and developed PTSD,’’ the lawsuit states. In other words, the suit contends that the military has refused to review or upgrade the discharge statuses of thousands of Vietnam War-era veterans with service-related PTSD.

Shepherd and VVA are represented by students at Yale Law School working at the Jerome N. Frank Veterans Legal Services Clinic. The students believe that since 2003 the Army has approved fewer than 2 percent of applications by Vietnam veterans claiming PTSD to upgrade discharges, compared to 46 percent for all discharge upgrade applications in recent years. Some of the veterans denied had at least one medal or had a PTSD diagnosis from the VA, according to students who analyzed the Army data.

The lawsuit estimates that about 85,000 of the more than 250,000 Vietnam veterans discharged under other-than-honorable conditions have PTSD. The discharges were based on poor conduct, such as unauthorized absence without leave, shirking, using drugs, or lashing out at comrades or superior officers—conduct the lawsuit claims was a symptom of underlying undiagnosed PTSD.

These veterans have experienced homelessness, prolonged unemployment, and troubled relationships, the lawsuit says. ‘‘Isolated and impoverished, they have struggled to cope, not only with their war wounds, but also with the shame of a bad discharge.’’

The U.S. attorney’s office, which is representing the military in the lawsuit, said it is reviewing the matter and will respond in court.