Legal Aid for Low-Income and Justice-Involved Veterans: Legal and Cultural Basics

Leo Flor, King County, Seattle, WA
Navigating the complex web of benefits intended to help low-income and justice-involved
veterans requires familiarity with substantive and cultural fundamentals. This session provides an
analytic framework, key issue identification, and cultural practices for advocates serving
veterans in a system where good will has not always yielded good outcomes.
Legal Aid for
Low Income &
Justice-Involved
Veterans:
Legal & Cultural Basics
​ABA-NLADA Equal Justice Conference | May 13, 2016
Presented by:
Leo Flor
[email protected]
‘
Remember the
Apostrophe …
Why
veterans?
Why else?
ROI
Moment
What makes a
person a
“veteran”?
Agenda
•
•
•
•
Who is a “Veteran”?
What is the “VA”?
Common Issues
Best Practices
•
Incarcerated Veteran Case Study: 3% to 18%
• Resources
Vet
Military Legal System
Veterans Legal System
Intersections
Who is a Veteran?
Learn More:
​RepWaVets.org: http://www.repwavets.org/who-is-a-veteran.html
​Congressional Research Service:
https://www.fas.org/sgp/crs/misc/R42324.pdf
​Swords to Plowshares: https://www.swords-toplowshares.org/sites/default/files/Reference%20Guide%20(February%2020
15).pdf
Who is a Veteran?
Social Definition
vs.
Statutory Definition
Veteran Status =
Qualifying “Active”
Service
+
Non-disqualifying
Discharge
Experience
Eligibility
Veteran =
Qualifying “Active” Service + Non-disqualifying Discharge
Qualifying Active Service can occur in the
Active, Reserve, or Guard component of the
five Armed Forces.
Veteran =
Qualifying “Active” Service + Non-disqualifying Discharge
Qualifying “Active” Service component:
Active Duty
Reserve
Guard
Active Duty service,
whether deployed
or not, will satisfy a
Qualifying “Active”
Service requirement
as long as it was of
sufficient duration.
Only “activated
federal” service will
qualify. Attendance
at training events
may not satisfy this
requirement.
Duration
requirements must
also be satisfied.
Only “activated
federal” service
qualifies for federal
VA entitlement.
State service may
qualify for State
programs. Duration
requirements must
also be satisfied.
*Some benefits may also specify “wartime” or “peacetime” service.
Veteran =
Qualifying “Active” Service + Non-disqualifying Discharge
A military discharge has two parts:
Characterization of Service
(Honorable, General Under Honorable, Other Than Honorable,
Bad Conduct, Dishonorable, Uncharacterized)
+
Reason for Separation
(Medical, Misconduct, Conscientious Objection, etc.)
*See VA Statutory Bars (38 USC 5303(a)) &
Regulatory Bars (38 CFR 3.12(d))
Veteran =
Qualifying “Active” Service + Non-disqualifying Discharge
The term discharge is commonly misused by veterans &
advocates:
“I have a medical discharge.”
(conflates the Reason for Separation with the discharge)
“I got out with an honorable discharge.”
(conflates the COS with the discharge)
Properly stated:
“I was discharged for medical disability with
an honorable characterization of service.”
* “Medical Discharge” may also refer to the veteran’s separation process.
Veteran =
Qualifying “Active” Service + Non-disqualifying Discharge
Finding the Reason for Separation & Characterization of Service on the DD 214:
Reason for Separation
Characterization of Service
*Non-federal National Guard Service yields an NGB 22
So What?
Federal Veteran
≠
State Veteran
≠
Local Veteran
Who is a Veteran?
Federal Department of Veterans Affairs: 38 USC §101(2)
The term ‘‘veteran’’ means a person who served in the active
military, naval, or air service, and who was discharged or
released therefrom under conditions other than dishonorable.
Qualifying Active Service
+
Non-Disqualifying Discharge
Who is a Veteran?
Federal Department of Veterans Affairs: 38 USC §101(2)
The term ‘‘veteran’’ means a person who served in the active
military, naval, or air service, and who was discharged or
released therefrom under conditions other than dishonorable.
Which combinations of
Characterization of Service +
Reason for Separation =
“under conditions other than
dishonorable?”
*See VA Statutory Bars (38 USC 5303(a)) &
Regulatory Bars (38 CFR 3.12(d))
Who is a Veteran?
Washington: RCW 41.04.007 [excerpted]
"Veteran" includes every person who … has received an
honorable discharge or received a discharge for medical
reasons with an honorable record … and who has served …
•[a]s a member in any branch of the armed forces of the United
States, including the national guard and armed forces reserves,
and has fulfilled his or her initial military service obligation; …or
•[a]s a member of the armed forces reserves, national guard, or
coast guard, and has been called into federal service by a
presidential select reserve call up for at least one hundred
eighty cumulative days; …
Qualifying Active Service
+
Non-Disqualifying Discharge
Who is a Veteran?
Washington: RCW 41.04.005 [excerpted]
"veteran" includes every person, who at the time he or she
seeks … benefits … has received an honorable discharge, is
actively serving honorably, or received a discharge for physical
reasons with an honorable record and who [has served during a
defined period of war or has received the armed forces
expeditionary medal, or marine corps and navy expeditionary
medal].
Qualifying Active Service
+
Non-Disqualifying Discharge
So What?
Active servicemembers are
not Federal Veterans*…
but they may be State or
Local Veterans.
* But See VA Home Loan & Some GI Bill Variants
Unique to WA?
Veterans Assistance: “For the
assistance of military veterans,
who served in the Armed Forces of
the United States, whose last
discharge from the service was
honorable to be eligible for
assistance…” 330 ILCS 45/2
Qualifying Active Service
+
Non-Disqualifying Discharge
In IL:
Qualifying Active Service +
Non-Disqualifying Discharge
Public Hiring Preference: “preference shall be given to persons who have
been members of the armed forces of the United States or who, while citizens of
the US, were members of the armed forces of allies of the US in time of
hostilities with a foreign county, and have served under one or more of the
following conditions:
1. The veteran served a total of at least six months, or
2. The veteran served for the duration of hostilities regardless of the length of
engagement, or
3. The veteran served in the theater of operations but was discharged on the basis of a
hardship, or
4. The veteran was released from active duty because of a service connected disability
and was honorably discharged…” 330 ILCS 55/1
Private Hiring Preference: “ ‘Veteran’ means an individual who meets one or
more of the following:
1. Has served on active duty with the armed forces of the United States for a period of
more than 180 days and was discharged or released from active duty under conditions
other than dishonorable;
2. Was discharged or released from active duty with the armed forces of the United
States because of a service-connected disability; or
3. Is a member of the Illinois National Guard who has never been deployed but separated
under conditions other than dishonorable as noted on the individual’s NGB-22
discharge form” 330 ILCS 56/10
Unique to WA?
980. (a) As used in this chapter, "veteran" means any of the following:
(1) Any citizen of the United States who served in the active military, naval, or air service of the United States on or after April 6, 1917, and prior to November 12, 1918, and who
received an honorable discharge or was released from active duty under honorable conditions.
(2) Any person who did all of the following:
(A) Served in the active military, naval, or air service of the United States for a period of not less than 90 consecutive days or was discharged from the service due to a serviceconnected disability within that 90-day period.
(B) Received an honorable discharge or was released from active duty under honorable conditions.
(C) Performed any portion of that service during any of the following periods:
(i) On or after December 7, 1941, and prior to January 1, 1947, including, but not limited to, members of the Philippine Commonwealth Army, the Regular Scouts ("Old Scouts"),
and the Special Philippine Scouts ("New Scouts").
(ii) On or after June 27, 1950, and prior to February 1, 1955.
(iii) On or after February 28, 1961, and prior to August 5, 1964, in the case of a veteran who served in the Republic of Vietnam during that period.
(iv) On or after August 5, 1964, and prior to May 8, 1975.
(v) On or after August 2, 1990, to and including the date on which the territories in and around the Arabian Peninsula cease to be designated as a place where the armed forces of
the United States are engaged in combat, as described in Executive Order 12744 of the President of the United States. It is the intent of the Legislature, in enacting this clause, that
the benefits provided by this chapter shall be available to all veterans who were on active duty in the armed forces of the United States or who were called to active duty in the
reserves or National Guard during the pendency of the deployment of forces for Operation Desert Shield or Desert Storm, which resulted in Executive Order 12744, irrespective of
whether these veterans served overseas or in the United States.
(vi) At any time, in a campaign or expedition for service in which a medal has been authorized by the government of the United States, regardless of the number of days served on
active duty.
(vii) At any time in Somalia, or in direct support of the troops in Somalia, including, but not limited to, persons stationed on ships of the United States armed forces conducting
support activities offshore in the vicinity of Somalia, during Operation Restore Hope, regardless of the number of days served.
(3) Any member of the reserves or National Guard who does all the following:
(A) Is called to, and released from, active duty or active service, regardless of the number of days served.
(B) Is called during any period when a presidential executive order specifies the United States is engaged in combat or homeland defense.
(C) Has received an honorable discharge or was released from active duty or active service under honorable conditions.
(4) Any person who did all of the following:
(A) Served in the Merchant Marine Service of the United States.
(B) Has been granted veteran status by the United States Secretary of Defense under Title IV of the GI Improvement Act of 1977 (Public Law 95-202, as amended).
(5) Any person who qualifies under federal laws for revenue bond or unrestricted funds (26 U.S.C. Sec. 143) and did all of the following:
(A) Served in the active military, naval, or air service of the United States for a period of not less than 90 consecutive days.
(B) Received an honorable discharge or was released from active duty or active service under honorable conditions.
(6) Any person who qualifies for funds made available from a qualified mortgage revenue bond issued pursuant to 26 U.S.C. Section 143 and is, at the time of application for CalVet benefits, a member of the California National Guard or a reserve component of any branch of the United States armed forces who has enlisted or been commissioned in that
service for a period of not less that six years and has completed a minimum of one year of satisfactory service.
(b) For purposes of this chapter "veteran" does not include any of the following:
(1) A person who was separated from the armed forces under other than honorable conditions.
(2) A person who was separated from the armed forces on account of alienage.
(3) A person who performed no military duty whatever or refused to wear the uniform.
(4) A person who served only in an auxiliary or reserve component of the armed forces whose service therein did not provide an exemption from the operation of the Selective
Training and Service Act of 1940 (54 Stat. 885, as amended).
(5) A person whose service with the armed forces was due to temporary active duty orders for the sole purpose of training duty, processing, or a physical examination, except as
provided for in paragraph (6) of subdivision (a).
(6) A person whose only service was as a student at a military academy and who, for any reason, failed to complete the course of study and subsequently did not serve on active
duty.
(c) For purposes of this section, "active duty" or "active service“ is defined as provided in 10 U.S.C. Section 101(d). Military and Veterans Code Section 980
Qualifying Active Service +
Non-Disqualifying Discharge
So What?
Interactions of Characterizations of Service and Selected Statutory Definitions of "Veteran"
Selected Statutory Definintions of Veteran
Characterizations of Service (COS)
Honorable
Administrative
General
COSs
OTH
Uncharacterized
Punitive COSs
Bad Conduct Discharge
Active Duty
NG or RES w/o Federal Activiation
Active Duty
NG or RES w/o Federal Activiation
Special CM
General CM
38 U.S.C. 101(2)
RCW 41.04.005
RCW 41.04.007
RCW 73.08.005
(after 6/9/2016)
WAR
King County
Veterans Levy
(since 2015)
WAR
Only possible w/
action by County
Legislative
Authority
Dishonorable
Current Active Duty Service (including NG/RES with Federal Activation)
WAR
Current NG/RES Service (not Federally Activated)
Note that this chart does not account for the effect of the Reason for Separation and Duration of Service, each of which may disqualify an otherwise eligible Characterization of Service.
Eligible
Eligiblity Possible
Ineligible
Live Issue: See Washington ESHB 1213 (2016)
What is your
organization’s definition
of “veteran”?
Does that definition align
with your organization’s
values, funders’
mandates, and
community needs?
What is the “VA”?
THE
VA
What is the “VA”?
The Federal “VA” or the State “VA”?
What is the “VA”
King County’s Regional Veterans
Initiative has identified at least 181
separate programs in King County
for veterans at the Federal, State,
Local, and Non-Profit levels.
Key Civil Legal
Issues for
Low-Income &
Justice-Involved
Veterans
Legal issues consistently make up 4 or 5 of homeless veterans’ top 10 unmet
needs: Child Support, Relicensing, Foreclosure/Eviction, LFO/Warrants, &
Discharge Upgrades. See VA’s CHALLENG surveys.
Separated Veteran
Pay: “Pension”
Paid by DOD
(DFAS)
Military
(Medical)
Retirement Pay
Military
Retirement
Medical
Benefits
Paid by VA
ServiceConnected
Disability
Compensation
Hybrid: Military
(Medical) Retirement w/
Service Connected
Disability
Non ServiceConnected
Pension
What is subject to
garnishment or
assignment?
Child Support
• Does a support order set pre-separation remain
realistic post-separation?
• Do multiple support orders recognize each other?
• Are VA Benefits “income” for child support
purposes? RCW 26.19.045
• VA Disability & “voluntary unemployment and
underemployment”; RCW 26.19.071(6)
• Child Support & Incarceration
• VA Apportionments
• Drivers Licenses
Incarceration &
Federal VA Benefits
• >60 days post-conviction incarceration for a felony
reduces VA Disability Compensation
• >60 days post-conviction incarceration for a
misdemeanor or felony suspends VA Pension
• Work Release, Day Reporting, and EHM are not
“incarceration” for VA purposes
*Consult the Veteran Defendant Checklist
Incarceration &
Federal VA Benefits
• Incarceration immaterial to GI Bill eligibility*
No payment of non-tuition/fees to veteran
No Montgomery GI Bill “buy in” refund for non-use
• “Fleeing” Felons lose ALL Federal VA Eligibility
• Overpayments
30 Days to Dispute & Request Continued Payment
180 Days for Waiver
*Consult the Veteran Defendant Checklist
Incarceration &
Military Discharges
• Is conviction of a civilian crime (or a
resulting condition of sentence) a
breach of contract?
If so: expect DOD Recoupment
Discharge Upgrade
Discharge Review Board
•15 year statute of limitations after
discharge (non-waivable)
•Cannot consider discharges by
General Court Martial
Board for Correction of
Military Records
•Must apply within 3 years of denial
by DRB or discovering the “error or
injustice” (waivable)
•Exhaustion is necessary
•Upgrade on basis of “propriety,”
“equity,” or “clemency”
•Only option if discharged by
general court-martial
•Can upgrade all characterizations
of service except dishonorable or
BCD given by General CM
•Upgrade on basis of “error,”
“injustice,” or “clemency”
•Can upgrade all characterizations
of service
Learn More: http://ctveteranslegal.org/resources/
Alternatives to
Discharge Upgrade
“…under conditions other than
dishonorable.” 38 USC §101(2)
• Prior periods of service
• VA Character of Service Determinations
Best Practices
Best Practices:
• AVOID ASKING, “ARE YOU A VETERAN?”
So what should you ask?
“Have you ever served in & been discharged from the Active
Duty, Reserve, or National Guard component of the U.S.
Army, Navy, Air Force, Marines, or Coast Guard?”
Case Study: 3% to 18%
Best Practices:
• BE MINDFUL OF VETERANS’ DIVERSITY:
- duration, nature, and recency of service
- drafted vs. volunteer veterans
- retired, medically retired, or separated
Best Practices:
• HAVE A PLAN FOR WAR STORIES:
- constructively react to killing, death, racism,
sexism, or homophobia—empathize without
excusing
- see veterans actions through the lens of
conditioning
- Never ask, “have you ever killed anyone?”
Best Practices:
• TAKE SUICIDE SERIOUSLY:
- 22 veterans commit suicide every day, on
average
- 7% of the population = 21% of national
suicides (trained to use weapons + decisive =
success)
- 1-800-273-8255 & press “1”;
http://www.veteranscrisisline.net/
Best Practices:
• BE CAREFUL WITH “THANK YOU FOR YOUR SERVICE”
Most veterans would rather be heard than
thanked.
Best Practices:
• HELP VETERANS UNDERSTAND THAT THEY MUST
ADVOCATE FOR THEMSELVES
Resources
• NVLSP Veterans Benefits Manual
• Patricia Roberts’ (William & Mary) Distribution List
• Crisis Line
1-800-273-8255 & press “1”;
http://www.veteranscrisisline.net/
Questions?
Presented by:
Leo Flor
[email protected]
Wait!
Shouldn’t “veterans”
have an apostrophe?
See Attributive Nouns
King County Veteran Defendant Checklist
How do you know if your client is a veteran1?
□
Ask: “Have you ever served in & been discharged from the Active Duty, Reserve, or National Guard
2
component of the U.S. Army, Navy, Air Force, Marines, or Coast Guard?”
Is a Veterans Treatment Court (VTC) right for your client?
□
VTCs coordinate treatment, health care, community, and court for eligible veterans who choose to participate.
Each VTC has its own eligibility criteria & requirements. Referral information & eligibility criteria at the footnoted URLs
King County Regional Veterans Court3
Seattle Municipal Veterans Treatment Court4
What should you think about when you represent a veteran?
□
Use veterans benefits as mitigation or alternatives to confinement
The federal VA, state VA, and King County provide eligible veterans with free or low-cost:
o Mental health/chemical dependency evaluations & treatment (in and outpatient)
o Healthcare
o Subsidized Housing with case management
o Emergency financial & rent assistance
o Employment assistance
□
Maintain veterans benefits-based income
o
□
Preserve VA benefits eligibility by avoiding incarceration >60 days after a conviction 5:
>60 days post-conviction incarceration for a felony6 reduces VA Disability Compensation
>60 days post-conviction incarceration for a misdemeanor or felony eliminates VA Pension
Work Release, Day Reporting, and EHM are not “incarceration” for VA purposes7
Avoid creating new debt & benefits overpayments
o
Notify VA Seattle Regional Office in writing if convicted & expecting >60 days incarceration
Send to VA Seattle Regional Office, 915 2nd Ave, Seattle, WA 9817—include vet’s name, SSN, date, and signature—keep a copy
o
o
o
□
Refer for Civil Legal Aid
o
o
o
o
o
□
Notify Social Security of any incarceration >29 days 8
Quash felony warrants: they terminate eligibility for VA9 & Social Security benefits
Apportion veterans benefits to eligible dependents if incarceration will otherwise reduce veteran’s
benefits eligibility
Modify Child Support payments to make them income-appropriate for incarcerated veterans10
Upgrade Military Discharge information to enable VA benefits access
Advise on effects of incarceration upon benefits entitlement
Advise on future possibility/process of vacating criminal convictions
Assist in creating VA apportionments and preventing/disputing VA overpayments
Restore income upon appeal
o
Convictions later overturned on appeal will entitle a veteran to receive retroactive payment of
compensation benefits (but not NSC-Pension) that were earlier reduced due to incarceration 11
1
Generally, veteran status requires Qualifying Service + Non-Disqualifying Discharge. Qualifying Service must be in one of the three
components (Active Duty, National Guard, Reserves) of the five Armed Forces (Army, Navy, Air Force, Marines, Coast Guard). Different
statutes specify which discharges are disqualifying. RCW 41.04.005 & RCW 41.04.007 define “veteran” for most purposes under state law. 38
USC §101 supplies the basic federal definition. Current servicemembers are not generally “veterans” for statutory & benefits purposes.
2
Verify military service information with the DD Form 214. Request a DD214 at http://www.archives.gov/veterans/military-service-records/.
3
http://www.kingcounty.gov/courts/DistrictCourt/MentalHealthCourt/Regional%20Veterans%20Court.aspx
4
http://www.seattle.gov/courts/vtc/vtcstaff.htm
5
Reductions of Disability Compensation: 38 USC §5313(a)(1); Elimination of NSC Pension: 38 USC §1505
6
“Felony” for this purpose may include misdemeanors under WA law if they would commonly be classified as felonies in other jurisdictions.
7
38 USC §5313(a)(2)
8
Social Security Publication No. 05-10133
9
38 USC §5313B for VBA impacts; VHA Handbook 1000.02 for VHA impacts; Neither adjudication of guilt nor knowledge of warrant is
necessary to trigger these prohibitions.
10
Veterans with WA-enforced administrative child support orders should petition DCS to modify their child support orders; veterans with courtordered child support must petition a superior court with jurisdiction; veterans with King County Superior Court Child Support Orders may
contact the King County Prosecuting Attorney, Family Support Division to seek modification: Jeannie Payne (206) 296-8918.
11
38 CFR § 3.665(m)
Visit http://RepWaVets.org
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King County Veteran Defendant Checklist
Top 5 Referrals for Veterans Collateral Consequences
Goals: VA Healthcare
 Enroll in VA Healthcare
 Learn about VA Mental Health &
Chemical Dependency Treatment
 Use VA Treatment in Release Planning
 In/Outpatient Healthcare
 Access to VA Housing Programs
Federal VA Healthcare (VHA)
Veterans Justice Outreach Coordinators
 Kevin Devine, LICSW
 Diana Belletti, LICSW
Goals: VA Income & Benefits
 Apply for VA Pension or Disability
Compensation
 Notify VA of >60 days incarceration
 Request benefits apportionment
 Check claims status
Federal VA Benefits (VBA)
Goals: Non-VA Emergency/Disability Income
 Apply for emergency financial
assistance
 Apply for Social Security benefits
 Apply for VA or non-VA Healthcare
benefits
WA Dept. of Veterans Affairs (WDVA)
Goals: Employment and Financial Assistance
 Receive employment assistance
 Receive education & training assistance
 Apply for emergency financial
assistance
King County Veterans Program
VA Puget Sound Health Care System - Seattle Division
1660 S. Columbian Way, Seattle WA 98108
http://www.va.gov/HOMELESS/VJO.asp
Jackson Federal Building, 915 Second Ave,
Seattle WA
Walk in: M-F 8:00-4:00
1-800-827-1000, M-F 7:00a-7:00p
eBenefits website: www.ebentifs.va.gov
IRIS inquiry system: Contact Us!
Goals: Collateral Civil Legal Matters
 Modify Child Support
 Upgrade Discharge Information
 Dispute/Prevent VA Overpayment
 Vacate Criminal Records
 Provide VA w/ Incarceration Notice

Valinda M. Hayes-Martinez
418 2nd Ave Extension South, Seattle WA 98104
WDVA Call Center: 1-877-904-VETS (8387)

Seattle Office (206) 477-8282
Walk in: M,W,Th 8:30-11:30 & Tues 1:00-3:00
2124 4th Ave, 4th Floor, Seattle WA 98121

Renton Office (206) 477-7022
Walk in: Mon-Thu 8:30-11:30
500 S.W. 7th St., Ste. 100, Renton WA 98057
Northwest Justice Project, Veterans Project
Advice and possible representation for low-income vets

Leo Flor
(1-855-NJP-VETS, call between 9:10 AM and 12:25 PM)
http://nwjustice.org/get-legal-help
NJP can only assist low-income veterans
http://www.washingtonlawhelp.org/
Veteran:__________________________________
Veteran’s Discharge (if known):_________________________
Defense Attorney:__________________________
Defense Attorney’s phone/email:_______________________
Created by an Equal Justice Works Fellowship sponsored by Fenwick & West LLP and The Microsoft Corporation
Representing Washington Veterans by Northwest Justice Project is licensed under a Creative Commons AttributionNonCommercial-ShareAlike 4.0 International License.
Visit http://RepWaVets.org
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