A Losing Battle How the Army denies veterans justice without anyone knowing

An obscure Army panel is supposed to correct errors or remove injustices. Many believe it’s rigged.

After almost a decade in the Army reserves, Chuck Luther was deployed to Iraq in 2006.

It was hell. An IED killed four men in his unit, including his best friend. A mortar blast left him partially deaf with splitting headaches. Luther started to unravel.

What happened next would start a five year battle with the Army. Luther was diagnosed with PTSD. Then the diagnosis was changed to a “Personality Disorder.” He was quickly booted out of the military with no benefits. Luther appealed the discharge. But then came the ultimate injustice: he discovered the one place in the Army he could go for help would leave him, and thousands like him, defeated.

“The military lied. And they lie again with the Boards of Corrections.” Chuck Luther Hear Chuck

The Board for Correction of Military Records (BCMR) is the last place in the Army you can go to change your record, including overturning a discharge that left you without medical benefits for service-related injuries. Its stated mission is to “correct errors” or “remove injustices.” Rarely does it do the latter, say vets and lawyers. A Fusion investigation has found a system shrouded in secrecy that hardly ever overturns a discharge like Chuck Luther’s. We analyzed thousands of Board decisions, reviewed hundreds of internal documents, and conducted nearly 50 interviews. We found that when service members file appeals that could lay significant blame on the Army or cost a lot of money, the default answer is often no. In fact, the system is so impenetrable, and the results so often negative, that few veterans attempt an appeal when they want a meaningful change.

“Each case has its own outrage,” said Michael Wishnie, professor and deputy dean at Yale Law School. “They routinely ignore the evidence, the medicine, the rules and the law to deny benefits to veterans.” “If you need to change a date on your record, add a medal, then yes, maybe you’ll get relief,” said Raymond Toney, a military law attorney who’s researched the Boards. “But when it comes to sexual harassment, reprisal for whistleblowers, things like that, forget about it.” That’s exactly what we found. The Army Board says it grants relief in about 41% of cases it reviews. We analyzed publicly available decisions for people appealing three common discharges that leave veterans without benefits. Between 2001 and 2012, we found that about 5 percent of veterans were able to change the reason for their discharge. But only about 2 percent were granted a medical evaluation that could result in a medical discharge and additional benefits. Not one was granted a medical discharge outright by the Board.

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In the case of Personality Disorder, veterans are denied medical benefits from the military because it’s considered pre-existing, not service-connected. In 2007 Congress held hearings on the issue. The following year, the Government Accountability Office found that Personality Disorder discharges were being given in violation of military policy. Sarah Bercaw, the Director of the Army BCMR, said the Board does not track what kinds of cases it grants and denies. She said that a “low number” of veterans appealed Personality Disorder discharges after the Congressional inquiry. “The reality is many choose not to [apply],” said Bercaw. “And that’s been the case in other areas where we identified an issue -- either a mistake was made, or a policy shift that affected folks.” But the Board can’t compel individuals to apply she added. It can only publicize their services, which it does online, through veterans groups and with direct mailings.

“The worst thing we can do is say no,” Bercaw said of service members who don’t try. “We want to help you. Justice, equity and compassion. We want to get this right.” But veterans, lawyers and advocates told us the same thing over and over: people don’t apply because it’s a daunting undertaking, and they don’t think they have a chance. It can take months just to request one’s full military records, and years to see a case through completion. Few service members know the intricacies of military law well enough to make a solid argument, and hardly any can afford a lawyer. “It’s very common knowledge in the veteran community how hard this is, so they don’t even try,” said Geoff Millard, an Iraq war veteran and Policy Associate at Swords to Plowshares. That’s despite how much a veteran could gain if he or she were granted a medical discharge, for instance, like Chuck Luther sought.

Benefits are only part of it. Employers may be reluctant to hire people with a Personality Disorder. Chuck Luther says he couldn’t get a well-paid private security job after leaving the Army because of the label. He was left broke and filed for bankruptcy. Liz Luras was kicked out of the Army with a Personality Disorder after being raped, reporting it, and suffering months of retaliation. Despite the fact that she had medical proof of the assault, and even testified before Congress about the reprisal, Luras hasn’t applied to the BCMR. “Even people presenting strong cases, they lose. You go through so much to get there, and then to have it fall apart, that can be really devastating,” said Luras. “You just never know – when does the retaliation end and there’s just justice?”

Chuck Luther’s case looks cut and dry. He had 12 years of successful military service. He’d earned three Army Achievement Medals and a Combat Action Badge. He was discharged honorably once, was able to re-enlist, and, says Luther, passed eight psychological screenings in the process. He started having problems, and only sought medical help, after going to combat.

“I started losing weight. I started to have anxiety and depression.” Chuck Luther Hear Chuck

Luther was diagnosed with PTSD three times before being discharged from the military. A few months later, doctors at the Department of Veterans Affairs - the VA - diagnosed him with service-connected PTSD and Traumatic Brain Injury. But the two PTSD diagnoses that came from military doctors had been changed; one within days, one within hours, and Personality Disorder is the diagnosis that stuck. Luther spent a year collecting the records and evidence for his application. Then he sent it in and waited.

June 6 2007 Auto Play

He was denied. And then denied again on appeal. In responding to his appeal, the board concluded there was no proof that Chuck Luther had PTSD prior to discharge, or that it was because of PTSD that he was unfit to serve. Luther had an independent psychologist review his medical records who determined he likely suffered from PTSD. The Board discounted the review since the psychologist did not examine Luther personally. That’s despite the fact that the BCMR regularly denies applicants based on its own doctors’ reviews of medical records, rather than personal exams. “It’s just outrageous,” said Todd Holbrook, the attorney that took on Chuck Luther’s case pro-bono. “It seemed to me like they were bending over backwards to protect the army and justify its initial decision.”

“I felt like I had no more fight in me, that I’d given all the fight and I was just exhausted.” Chuck Luther Hear Chuck

Chuck Luther’s experience with the Board isn’t unique. There's the female soldier who was raped repeatedly by a fellow soldier, was diagnosed with PTSD by a military doctor, had a history of head trauma and sexual assault, and was kicked out a month later for a pre-existing “condition, not disability.” The West Point cadet who was disenrolled a month before graduation because he failed fitness tests, leaving him with no degree and owing $136,000, even though regulation said the Army could only recoup tuition when cadets left voluntarily or because of misconduct. The Colonel who was denied a promotion to Brigadier General (a rank so senior it must be approved by the President and the Senate), for misconduct that never happened. While documents in his application showed “he did not actually engage in misconduct … they do not change the appearance of impropriety,” reasoned the Board. All of these service members’ applications for relief were denied.

"We serve the Soldier, the veteran, the families in a courteous and timely manner; we decide their cases on behalf of the Secretary of the Army with justice, equity, and compassion, and in the public interest; we present our decisions in clear and concise responses." Mission Statement, Army Review Boards Agency

“This is the last chance for these service members to have their records corrected, and when we look through these cases we see these incredible errors that are so blatant,” said Tom Moore, a former active duty JAG Corps member who now trains pro-bono lawyers with the National Veterans Legal Services Program. “Errors are not getting caught. The system is not designed to fix these problems.” The Army Board for Correction of Military Records is made up of a rotating panel of three senior-level civilian employees of the Army. About 9,000 cases a year are reviewed by BCMR board members. Several thousand more cases are handled by the civilian staff of 43 people, and never reach board members.

“Board members are chosen because they’re well respected, they’re probably highly competent, many of them have served in the military,” said Moore. “They’re well meaning, they’re capable of making good decisions, but the system does not allow them to do that.”

Board members meet twice a week and begin deliberations at 8am and finish around 1pm, deciding about 80 cases, according to internal documents obtained by Fusion. On average that’s three minutes and 45 seconds per case, even though some of these applications, like Luther’s, are hundreds of pages long. But Board members aren’t required to read applications cover to cover. They’re presented with a summary of the case and a decision recommended by an analyst who works for the BCMR. Sarah Bercaw, the BCMR Director, said Board members can request extra time to deliberate on difficult cases, and do. She added that many of the cases decided during a session involve simple administrative changes like spelling errors that require no discussion, leaving more time for complex ones. But she also said that the Board must meet a mandated deadline. Chuck Luther's original BCMR application was 487 pages long. It took him almost one year to put together. This is how fast you'd have to read if you spent the average time the BCMR spends reviewing each application - 3 minutes, 45 seconds.

“We have to have 90% of the cases complete in 10 months, and 100% complete in 18 months and we meet that timeline,” said Bercaw. “But the research and analysis that goes into [the draft decisions] before the board meets is very extensive and very time consuming.” Bercaw did not have data on how often Board members disagree with the draft decisions presented to them, but she said it happens regularly. One former Board member who served for ten years, told us he signed off on analysts’ decisions more than 95 percent of the time. He requested anonymity because he did not want to compromise relationships with former colleagues. “The analysts would say, ‘our recommendation is this,’” said the former member. “We’d get a pile of concurs, not concur.” The former BCMR member emphasized that he found the work rewarding and considered the analysts competent. He trusted the decisions they reached, especially in complex cases like Chuck Luther’s, which require knowledge of a complicated set of army regulations and medical diagnoses. “There was a medical doctor on the staff there. He’d been there for a long time, he was very experienced. He weighed in on those,” said the former member. Service members and their lawyers don’t agree that analysts and the one doctor on the Board’s staff are qualified to make recommendations without significant oversight. “When I see the decisions written by analysts, they clearly don’t understand the army regulations,” said Tom Moore. “For the board to really work, we have to force the board members to consider the facts, all the pertinent records.”

Lawyers say analysts’ case summaries regularly omit evidence brought by applicants. Doctors providing expert opinions are not required to have a mental health background – in one case we analyzed, a Personality Disorder discharge was upheld by a general practitioner, not a psychologist. Currently, the one doctor on the board staff is not a psychologist. And while it is technically possible to appear before the Board, it’s not easy. The former Board member who spoke with us had never met a service member whose case he helped decide. He deliberated on an estimated 10,800 applications over the ten years he served. There was one personal appearance granted by the Army BCMR in 2012, 2010 and 2009 combined, the only years for which we were able to gather data. Bercaw confirmed there hadn’t been one in the last year either, adding that either Board members or the director can grant a hearing if they deem it necessary. In the four years that only one personal appearance was granted, the Board handled an estimated 36,000 cases.

Personality Disorder is a good litmus test for the BCMR because it’s one place the military has made mistakes. A 2008 report by the Government Accountability Office reviewed Personality Disorder discharges for 371 veterans across service branches and found that, among other things, almost a third of the soldiers discharged from the Army with a Personality Disorder were never diagnosed by a psychiatrist or PhD-level psychologist -- a requirement by military policy.

That year the Department of Defense did their own review of the Personality Disorder discharges and found none were done improperly. However, the Pentagon added extra layers of oversight and they decreased dramatically.

Army Personality Disorder Discharges

Yet, there have been no mass reversals for those who received Personality Disorder discharges prior to the change: the Pentagon referred veterans who believed they were discharged improperly to the BCMR. But while 6,709 soldiers were discharged from the Army with Personality Disorders between 2001 and 2007, we found only 231 Army veterans appealed those discharges to the Board through 2012. And of those, only one applicant was sent to be evaluated for a medical discharge. Chuck Luther, now 43, became a voice for many when he testified before Congress in 2010 about his experience. He says now that despite the publicity, he wasn’t surprised by the decision of the Board for Correction of Military Records in his case.

“It’s just such a messed up system. It's flawed, it's tainted, and it’s biased.” Chuck Luther Hear Chuck

Veterans’ lawyers say that a practical lack of oversight is a big part of the problem. You can challenge a BCMR decision in federal court, but attorneys estimate that happens about 1 percent of the time (the Army was not able to confirm that information). Lawyer fees range from $5,000 to $15,000, so most service members can’t afford one. “In the last 30 years there’s been almost no judicial review of these cases,” said Michael Wishnie, professor at Yale Law School. “The boards have come to function with impunity, without fearing that they’ll have to defend their work.” The result, said Wishnie, are decisions that “if my students turned something like that in to me, I would fail them.” Congress has ultimate say over the Board. The last time Fusion found it ordered a comprehensive review of the BCMRs was in 1996. The Senate Armed Services Committee was “concerned about the perception among service members that the boards have become lethargic and unresponsive, and have abdicated their independence to the uniformed service staffs.” The subsequent Department of Defense report stated that there wasn’t evidence of military commanders influencing Board members directly, but the Army’s procedure of having analysts write full draft decisions, "raises an appearance that panel members merely act as a ‘rubber stamp.’” That same process remains in place nearly 20 years later.

Reforming the system Spurred by veterans’ complaints about the Board some members of Congress have recently begun looking into its inner workings. A bill co-sponsored by Senator Kirsten Gillibrand would require a psychologist or psychiatrist to advise the BCMR on cases that involve mental health issues. "Veterans with PTSD deserve to have a professional with specialized mental health training on the board reassessing their discharge and we are fighting to get that signed into law this year,” said Senator Gillibrand. “Soldiers like Chuck Luther who put their lives on the line for this country deserve to have their case reviewed by trained professionals that understand the causes and effects of PTSD and can give these brave veterans access to the health benefits they need and deserve.” Another inexpensive fix, say lawyers, is giving Board members the applications to review in advance of their meetings. This is done by the Air Force’s BCMR, said Raymond Toney, adding that his research shows that Board’s decisions are generally more favorable to applicants. In early September, the Department of Defense released new guidelines for the various branches’ Boards. The new rules were issued in response to a class action lawsuit filed by Yale’s Veteran Legal Services Clinic on behalf of Vietnam-era veterans who received misconduct discharges and claim the misconduct was a result of undiagnosed PTSD. The directive instructs Board members to carefully consider medical evidence in cases where veterans seek to upgrade an other than honorable discharge when there’s a PTSD diagnosis. “Secretary Hagel’s memo shows an improvement over past practices of the Board, which were unjust and illegal,” said Thomas Brown, a law student intern at the clinic. “But the proof will be in the pudding. We still have to see how it will be implemented.” The directive does not affect requests for medical discharges. Seven years after being forced out of the military, Chuck Luther has given up trying to change his discharge. He was able to get medical coverage through the VA after a year-long application process, but the benefits are significantly limited compared to what he’d have gotten from the Army with a medical discharge. Today he runs a smoothie shop in a strip mall off a flat, dusty road in Killeen, Texas. Customers get hints of his military background. His hair is cropped short; his frame is sturdy and muscular. His arms are covered with tattoos. One reads “Disposable Warriors” in block letters. The other is scrawled with a quote from Plato: “Only the dead have seen the end of war.” While Chuck Luther will never wear an Army uniform again, he’s surrounded himself with people who do — he works with soldiers at Fort Hood through a program administered by Texas A&M University. He mediates between soldiers and their chain of command to diffuse difficult situations before they end in a bad discharge.

“If we could keep one family from going through the tragedy that my family went through, then we’ve met our goal.” Chuck Luther Hear Chuck

Editor's note: An earlier version of this story described ABCMR Director Sarah Bercaw's quote regarding the timeline set for deciding cases as a time crunch. Army officials disputed that characterization. The line has been changed to a mandated deadline.