Introduction
Mr. Gonzalez served in the U.S. Army from 2000 to 2014 as a motor transport operator, or truck driver.
During his first deployment to Iraq, Mr. Gonzalez led multiple convoys that were struck by improvised explosive devices (IED), mortars, and small arms fire.
After witnessing the deaths and injuries of fellow soldiers in these attacks, he returned from Iraq and began experiencing symptoms of depression, anxiety, and sleep disturbances, and he sought counseling from the Army.
He was diagnosed with major depressive disorder and referred to a psychotherapy program.
His symptoms worsened, and he was subsequently diagnosed with post-traumatic stress disorder (PTSD) and traumatic brain injury (TBI) and was prescribed antidepressants.
Despite knowing that Mr. Gonzalez suffered from depression and alcohol dependence related to his PTSD and TBI, the Army deployed Mr. Gonzalez twice more during his career, exposing him to additional IED blasts and trauma.
The incident that led to Mr. Gonzalez’s discharge occurred three years after his last deployment. He was arrested on post for driving while intoxicated with his son in the vehicle and was charged under the Uniform Code of Military Justice (UCMJ).
Mr. Gonzalez accepted an “Article 15,” an administrative forum for addressing violations of the UCMJ, and was found guilty by his unit commander.
The Army subsequently discharged him for the misconduct and issued an other-than-honorable (OTH) discharge, despite his severe history of PTSD and TBI and his successful completion of three deployments.
The criminalization of Mr. Gonzalez’s mental health condition effectively terminated his chances of receiving medical treatment in service for his PTSD or TBI and reduced his chances of obtaining Department of Veterans Affairs (VA) healthcare after service.
More importantly, it discounted his medical condition and characterized his service such that it would create lasting barriers to employment, education, housing, healthcare, and other critical aspects of civilian life.
Unfortunately, Mr. Gonzalez’s case is not unique. In 2017, the Government Accountability Office (GAO) reported that 62% of servicemembers discharged from service for misconduct between 2011 and 2015 had been diagnosed with PTSD, TBI, or some other mental health disorder within the two years preceding their discharges.
Of those who were discharged, 23% received an OTH discharge and 70% received a “general” discharge.
The GAO concluded that servicemembers with mental health issues were being disproportionately discharged with OTH or general discharges, collectively referred to as “less-than-honorable (LTH) discharges,” without due consideration of their mental health statuses.
Statistically, Mr. Gonzalez’s skin color also likely played a role in his discharge. In June 2020, the House Armed Services Committee Military Personnel Subcommittee held a hearing where a GAO official testified that servicemembers of color were twice as likely to face courts-martial as white servicemembers and were more likely to face nonjudicial punishment.
In response to these statistics, top officials in the Air Force and Army testified that determining the causes of the racial disparities would require further exploration.
The tone-deaf responses from senior Department of Defense (DOD) officials echoed a DOD study that had reached the same conclusion some fifty years earlier.
The cycle of injustice, then, is that servicemembers are promised benefits and, once enlisted, exposed to serious health hazards such as PTSD, TBI, and other mental health disorders.
When they exhibit symptoms related to these illnesses in the form of misconduct, they are drawn into the military legal system. Statistics show that this is twice as likely to happen to servicemembers of color than to white servicemembers.
Involvement in the military legal system is then used as a basis for discharge and recorded as an LTH discharge in official records, creating a lifelong stigma of dishonorable service for the veterans.
Much has been written about the collateral consequences of criminal convictions that prevent individuals with criminal histories from becoming productive members of society.
Less well understood, however, are the collateral consequences of LTH discharges that create barriers to obtaining healthcare, disability compensation, education, housing, employment, and other transitional necessities for veterans.
This Essay adds to the discourse on military discharges by examining the collateral consequences of discharge characterizations through a criminal law lens.
This Essay argues that while discharges are technically administrative actions, they have been doing the work of criminal convictions in the military for some time. Since World War II, the lines between administrative action and criminal punishment have become increasingly blurred.
Today, veterans who are disciplined through either process continue to be punished long after service through the collateral consequences of their military service.
In this way, they share a hardship experienced by people involved in the criminal legal system. The movement to limit the collateral consequences of criminal arrests and convictions has much to offer military justice.
Part I of this Essay provides an overview of the current law, regulations, and policy governing the military discharge system. It also discusses the military’s increasing use of administrative discharges in lieu of courts-martial to address minor misconduct. Part II examines the collateral consequences of criminal convictions, their disproportionate effects on communities of color, and their invisible role in the criminal legal system.
It examines recent advances at the state and local level to ease the undue weight and burden that criminal convictions place on individuals. It then draws lessons from these advances to argue that the collateral consequences of military discharges, which are strikingly similar to those of criminal convictions, must be addressed, and their disproportionate effect on disabled veterans eliminated. Part III explores solutions to the military’s collateral consequences problem, analyzing efforts by DOD to adopt a clemency approach to discharge review, and examines other proposals to adopt a more redemptive approach to collateral consequences. This Essay concludes that a multifaceted approach is necessary, and it must include the codification of DOD’s clemency guidance, broader access to VA benefits for veterans with LTH discharges, and statewide efforts to reduce the effects of discharge characterizations on employment.