On August 25, 2017, the Department of Defense (DoD) issued a Memorandum clarifying guidance to Military Discharge Revuew Boards and Boards for Correction of Military/Naval Records considering requests by veterans for modification of their Discharge due to mental health conditions, traumatic brain injury, sexual assault, or sexual harassment.
Requests for discharge relief typcially involve four questions:
- Did the veteran have a condition or experience that may excuse or mitigate the discharge?
- Did that condition exist or did that experience occur during military service?
- Does that condition or experience actually excuse or mitigate the discharge?
- Does that condition or experience outweigh the discharge?
This new guidance provides that liberal consideration will be given when the application for discharge relief is based in whole or in part on matters relating to mental health conditions, including PTSD, TBI, sexual assault, or sexual harassment. Evidence may come from sources outside a veteran's service record and may include:
- records from the DoD Sexual Assault Prevention and Response Program
- law enforcement authorities
- rape crisis centers
- mental health counseling centers
- pregnancy tests
- tests for sexually transmitted diseases
- statements from family members, friends, roommates, co-workers, fellow servicemembers, or clergy
Evidence may also consider behavioral or situational changes, like:
- changes in behavior
- requests for transfer to another military duty assignment
- deterioration in work performance
- inability of the individual to conform their behavior to the expectations of a military environment
- substance abuse
- episodes of depression
- panic attacks
- anxiety without an identifable cause
- unexplained economic or social behavior changes
- relationship issues
- sexual dysfunction
Evidence of misconduct, including any misconduct underlying a veteran's discharge, may be evidence of a mental health condition, including PTSD, TBI, sexual assault or sexual harassment. The veteran's testimony alone may establish evidence of a condition or experience.
Was there a condition or experience?
Generally, a diagnosis made by a icensed psychiatrist or psychologist is evidence the veteran had a condition that may excuse or mitigate the discharge. Evidence that may reasonably support more than one diagnosis should be liberally considered as supporting a diagnosis that could excuse or mitigate the discharge.
A veteran asserting a mental health conditon without a diagnosis will receive liberal consideration of evidence that may support the existence of such a condition.
Review Boards are not required to find that a crime of sexual assault or an incident of sexual harassment occured in order to grant liberal consideration to a veteran that the experience happened during military service, was aggravated by military service, or that it excuse or mitigates the discharge.
Did it exist or occur during military service?
A diagnosis made by a licensed psychiatrist or psychologist that the condition existed during military service will receive liberal consideration.
A determination made by the Department of Veterans Affairs (VA) that a veteran's mental health condition, including PTSD, TBI, sexual assault or sexual harassment, is connected to military service, while not binding on the DoD, is considered persuasive evidence that the condition existed or the experience occurred during military service.
Does the condition or experience excuse or mitigate the discharge?
Conditions or experiences that may reasonably have existed at the time of discharge will be liberally considered as excusing or mitigating the discharge. Evidence that may reasonably support more than one diagnosis or a change in diagnosis, particularly where the diagnosis is listed as the narrative reason for discharge, will be liberally construed as warranting a change in narrative reason to "Secretarial Authority," "Condition not a disability," or another appropriate basis.
Does the condition or experience outweigh the discharge?
In some cases, the severity of the misconduct may outweigh any mitigation from mental health conditions, including PTSD, TBI, sexual assault or sexual harassment. Further, premeditated misconduct is generally nto excused by mental health conditions, including PTSD, TBI, or by a sexual assault or sexual harassment experience. However, substance-seeking behavior and efforts to self-medicate symptoms of a mental health condition may warrant consideration. Review Boards will exercise caution in asessing the causal relationship between asserted conditions or experiences and premeditated misconduct.
See the attached DoD Memorandum for the full text and additional clarifications.