Vermont Bar Association

Seminar Materials

Procrastinators Day 2018

June 20, 2018

Trader Duke's Hotel

S. Burlington, VT

Speakers, in order of appearance:

Samara Anderson, Esq.

Angela Zaikowski, Esq.

Larry Cohen, Esq.

Laurie Izutsu, Esq.

REPRESENTING VETERANS:Defining the Need and Ways to HelpLaurie Izutsu, Esq.Vermont Veterans Legal Assistance ProjectSouth Royalton Legal Cliniclizutsu@vermontlaw.edu

Hypothetical

Jerry served in the military from 2003 to 2004. Later, he worked as a machinist, but became unemployed in the past year due to ongoing depression and anxiety. He lost his health benefits when he lost his job, and now would like to apply for VA benefits.

What type of information do you need to obtain in order to provide information or counsel about Jerry’s options?

What possible legal issues might Jerry encounter?

What benefits might be appropriate for Jerry?

How might you, as an attorney, assist Jerry?

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Cultural Competency – U.S. Military

If you serve in the U.S. Armed Forces, you are called a “soldier.”

a. Trueb. False

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U.S. Army • Soldier• Motto: “This we’ll defend.”• Mission:

• “To fight and win our Nation’s wars by providing prompt, sustained land dominance across the full range of military operations and spectrum of conflict in support of combatant commanders.”

• Core Values• Loyalty• Duty• Respect• Selfless service• Honor• Integrity• Personal Courage

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U.S. Navy• Sailor/seaman• Motto: “Semper Fortis” - “Always Courageous”• Mission: “To maintain, train and equip combat-

ready Naval forces capable of winning wars, deterring aggression and maintaining freedom of the seas.”

• Core values:• Honor• Courage• Commitment

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U.S. Marine Corps

• Marines• Motto: Semper Fidelis – “Always Faithful”• Mission: (National Security Act of 1947)

• The seizure or defense of advanced naval bases and other land operations to support naval campaigns

• The development of tactics, techniques and equipment used by amphibious landing forces

• Such other duties as the President may direct

• Core Values:• Honor• Courage • Commitment

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U.S. Air Force • Airman• Motto: “Above All”• Mission: “To deliver sovereign options for the

defense of the United States of America and its global interests to fly and fight in air, space and cyberspace.”

• Core Values: • Integrity first• Service before self• Excellence in all we do

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U.S. Coast Guard • Coasties/Coast Guardians• Motto: “Semper Paratus” – “Always Ready”• Mission: “To protect the public, the environment,

and the United States economic and security interests in any maritime region in which those interests may be at risk, including international waters and America's coasts, ports, and inland waterways.”

• Core Values: • Honor• Respect• Devotion to duty

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Cultural Competency – U.S. Military

U.S. Armed Forces• Department of Defense: Army, Navy (Marine Corps), Air

Force • Department of Homeland Security: Coast Guard (DoD

in wartime)• President is Commander-in-Chief

“Active”• Fulltime or working the hours required of a position• On call 24/7• Distinguished from the Reserves or National Guard

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Cultural Competency – U.S. Military

What is one difference between the Reserves and National Guard?

a. The Reserves have 3 weekend drills a month, while the National Guard only has 2.

b. The Reserves is a federal entity while the National Guard is controlled by the State.

c. Only service members in the Reserves can be deployed to combat.

d. Only Reserve members can qualify for VA benefits.

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Cultural Competency – U.S. Military

• The Reserves • Federal entity• Under the command of the respective military branch• Participate in boot camp + training drills 1 weekend/mo

+ 2 week program each year• Available for active duty when needed• Fill the gaps in stateside positions when active duty

forces go overseas

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Cultural Competency – U.S. Military

National Guard• Organized and controlled by the State, under the command

of Governor• Army National Guard and Air Force Air National Guard• Called up for active duty by their respective states• Training drills 1 weekend/month, 2 weeks/year• Can be federally mobilized or activated in times of war or

emergencies

https://www.va.gov/vetsinworkplace/docs/em_activeReserve.html

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Cultural Competency – U.S. Military

Hierarchy and Rank• Enlisted members

• E-1 to E-3: specific job functions• E-4 to E-9: Non-commissioned officers (NCOs)

• Warrant officers (W-1 to W-5)• App. 2%• Highly specialized

• Commissioned officers• O-1 to O-5• App. 14%• Leadership and management roles• Bachelor’s degree +

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Cultural Competency – U.S. Military

• OIF (Operation Iraqi Freedom) – war in Iraq• OND (Operation New Dawn) – withdrawal of troops Sept.-

Dec. 2011• OEF (Operation Enduring Freedom) – War in Afghanistan• BOG – “Boots on the Ground”; ground troops on active

service in a military operation• KIA – Killed in Action• AWOL – Absent Without Leave• IED – Improvised Explosive Device• M-RAP – Mine Resistant Ambush Protected Vehicle

• squad → platoon → company → battalion → brigade

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Cultural Competency – U.S. Military

• SOP – Standard Operating Procedure• CO – Commanding Officer• TDY – Temporary Duty• MOS – Military Occupational Specialty• MRE – Meal Ready to Eat• Humvee – (HMMWV) High Mobility Multi-purpose

Wheeled Vehicle• Down range - deployed• V/R – Very Respectfully• NATO phonetic alphabet- Alpha, Bravo, Charlie, Delta, Echo,

Foxtrot, Golf, Hotel, India, Juliet, Kilo, Lima, Mike, November, Oscar, Papa, Quebec, Romeo, Sierra, Tango, Uniform, Victor, Whiskey, X-ray, Yankee, Zulu

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Cultural Competency – U.S. Military

Common elements, differing cultures across branches

Motivations for joining• Family tradition• Serve country• College tuition• Escape • friends

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Cultural Competency – Veteran Homelessness

The number of homeless veterans has been steadily increasing over the past seven years.

a. Trueb. False

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Cultural Competency – Veteran Homelessness

“Opening Doors” (2010)

• 17% decline between 2015 and 2017; 50% decline between 2010 and 2016

• As of January 2016, fewer than 40,000 veterans • 11% of the adult homeless population• 51% have disabilities• 50% have serious mental illness• 70% have substance abuse problems

See http://nchv.org/index.php/news/media/background_and_statistics/ (last visited Aug. 9, 2017); https://www.va.gov/HOMELESS/pit_count.asp (last visited Aug. 9, 2017).

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Cultural Competency – Veteran Suicide

Based on VA research, the risk of suicide is how much greater for veterans than adult civilians generally?

a. 20%b. 30%c. 40%d. 50%

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Cultural Competency – Veteran SuicideJuly 2016 VA report

• Risk of suicide is 21% greater for veterans.• 20 veterans per day• 18% of all suicides among adults in the U.S.• 32% increase in veteran suicides between 2001 – 2014• 8.8% increase in veteran suicides who use VA services• 38.6% increase – no use of VA services• 65% of veterans who died in 2014 ≥ 50

See https://www.va.gov/opa/pressrel/pressrelease.cfm?id=2807 (last visited Aug. 11, 2017); see also https://www.research.va.gov/topics/suicide.cfm (last visited Dec. 5, 2017)

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Cultural Competency – Veterans and PTSD

Approximately what percentage of Vietnam veterans suffer from PTSD?

a. 15%b. 35%c. 55% d. 75%

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Cultural Competency – Veterans and PTSD

Incidence of PTSD:

• Vietnam War• 15% (late ‘80s)• Estimated 30% over lifetime

• OIF and OEF11-20% in a given year

• Gulf War (Desert Storm)• 12% in a given year

• Military sexual trauma: 23% (VA users)• General population: 7-8% over lifetime

See https://www.ptsd.va.gov/public/PTSD-overview/basics/how-common-is-ptsd.asp (last visited Dec. 5, 2017)

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Cultural Competency – Women Veterans

Together, women veterans comprise approximately 15% of the veteran population.a. Trueb. False

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Cultural Competency – Women Veterans

(as of 2015)• 9.4% of the veteran population (2043 → 16.3%)

• 2,000,000 women veterans

• More than twice as likely as non-veteran women to be homeless• 19% African American• 9% Hispanic• 20% received service-connected disability compensation

• 47,931 (11.8%) PTSD• 26,501 (6.5%) major depressive disorder

• Rate of suicide increased 98% among female veterans who don’t use VA.

See https://www.va.gov/vetdata/docs/SpecialReports/Women_Veterans_2015_Final.pdf (last visited Aug. 14, 2017)

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Cultural Competency – LGBTQ Veterans

• > 1,000,000 veterans estimated to be LGBT• 70,000 LGB personnel currently serving• 134,300 transgender veterans/retired Guard/Reserve as of

2014• 15,500 trans service members on active duty, Guard/Reserve

See https://williamsinstitute.law.ucla.edu/wp-content/uploads/Gates-GLBmilitaryUpdate-May-20101.pdf (last visited Aug. 15, 2017); see also http://williamsinstitute.law.ucla.edu/wp-content/uploads/Transgender-Military-Service-May-2014.pdf (last visited Aug. 9, 2017)

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Cultural Competency - Minority Veterans(2014)• 22.6% of the total veteran population• Projected to be 35.7% by 2040• > 43% served during Gulf War era (August 1990 to present)• Black, non-Hispanic: 52% of minority veterans• Hispanic: 30.8% of minority veterans• Asian: 6.7% • 2 or more races: 6.7%• American Indian & Alaskan Native: 2.9%• Native Hawaiian/Pacific Islander/Other: 1.2%• Less likely than minority non-veterans to be living in poverty• 44.1% use at least 1 VA benefit or serviceSee https://www.va.gov/vetdata/docs/SpecialReports/Minority_Veterans_Report.pdf (last visited Aug. 22, 2017)

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Cultural Competency - Vermont Veterans

• Veterans in the U.S. (as of 9/30/15): 20,165,625 (6.5%)

• Vermont: 44,271 (Fiscal year 2016) 7% of the population

• Vietnam War: app. 34%

• Gulf War I & II: app. 28%

• Korean War: app. 8%

• WW II: app. 4%

• Peacetime only: app. 28%

• Women: 8.5%

• Homeless: 119 (2010-2014 HUD estimate)See https://www.va.gov/vetdata/veteran_population.asp (last visited June 16, 2018); see also

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Cultural Competency - VA

What is the “VA”?a. the largest federal government agencyb. a health care system for veteransc. a body that administers government benefits to

veteransd. all of the abovee. b and c above

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Cultural Competency - VA

Largest civilian bureaucracy Current Secretary: Robert Wilkie

• Veterans Health Administration• National Cemetery Administration• Veterans Benefits Administration

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Cultural Competency - VA Benefits

• Service-connected disability compensation• Pension• Survivor’s Disability Benefits

• Dependency & Indemnity Compensation (DIC)• Death pension

• Healthcare

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Cultural Competency - VA Benefits

• Education and Training• G.I. Bill • Education expenses• VetSuccess

• Housing• home loan subsidies

• Burial benefits• VA life insurance

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VA Benefits - Basic Eligibility

Anyone who served in the U.S. military is a veteran.

a. Trueb. False

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VA Benefits – Basic Eligibility

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. 38 U.S.C. § 101(2).

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VA Benefits – Basic EligibilityBASIC ELIGIBILITY

• ACTIVE service (fulltime service)• Reserve: “active” only when mobilized• National Guard: “active” when called up to active federal service;

30 consecutive days in a war zone• Merchant marines (“Mariners”)

• MINIMUM TIME IN SERVICE (if enlisted after 9/7/80)• 24 months continuous active duty OR• full period ordered to active duty required • Exceptions: service-connected disability, early out, hardship

discharge

• DISCHARGE THAT IS NOT DISHONORABLE

https://www.va.gov/vetsinworkplace/docs/em_activeReserve.html

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Legal Needs of Veterans

Veteran-specific cases commonly seen:

- Initial filing of claims to obtain VA benefits

- Subsequent claims related to VA benefits

- appeals from the denial of claims related to VA benefits

Notice of Disagreement → DRO review → BVA → Court of Appeals for Veterans Claims → COAFC → SCOTUS

- GI Bill education benefits issues

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Legal Needs of Veterans:

Discharge Upgrades and Records Corrections

• Discharge – terminates the contract to serve in the military

• DD Form 214• Character of Service• Narrative Reason for Separation

2 paths:• Discharge Review Board (equity or propriety)

• 15 year SOL• Not available to veterans discharged/dismissed by general court

martial• Board for Correction of Military Records (error or injustice)

• 3 year SOL

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Legal Needs of Veterans

CIVIL LAW

• Family • Divorce; custody and visitation; child support

• Healthcare/Disability• Social Security Disability Insurance• Malpractice and negligence

• Consumer/Financial • Bankruptcy• Debt collection

• Estate planning

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Legal Needs of Veterans

• Housing• Landlord/tenant issues• Homelessness • Foreclosure• Property

• Employment /Education• Unemployment Insurance• Reasonable accommodation

• Public benefits• Supplemental Security Income• Medicaid

CRIMINAL LAW MATTERS

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Benefits of Legal Representation

• Addresses needs of the homeless veterans population

• top 4/10 unmet needs are legal

• May reduce stressors for those at greater risk of suicide and PTSD

• Reduces the chances of error at the claims level

• Avoids years of delay during appeals process

• Removes stigmatizing character of discharge

• Enables veterans to apply for benefits

• Provides opportunity to improve quality of life

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How Attorneys Can Help

• Take on a veteran-specific claim.

• Obtain appropriate accreditation and training.- Title 38 of the U.S.C.- https://www.va.gov/ogc/accreditation.asp- Practicing Law Institute- National conferences- National veterans organizations- Online military cultural competence trainings

• Sign up with the Vermont Volunteer Lawyers Project.

• Help coordinate and participate in pro bono clinics for veterans.

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How Attorneys Can Help

• Develop military/veteran-sensitive intake questions.• Which branch did you serve in?• What brought you to join the (branch) ?• What was your MOS?• What was your rank?• Did you deploy?

• Get involved in a Stand Down or Town Hall.

• Build relationships with local veterans’ organizations.

• ***Take on a veteran’s case in your area of expertise on a low bono or pro bono basis.***

• Listen.

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Hypothetical

Jerry served in the military from 2003 to 2004. Later, he worked as a machinist, but became unemployed in the past year due to ongoing depression and anxiety. He lost his health benefits when he lost his job, and now would like to apply for VA benefits.

What type of information do you need to obtain in order to provide information or counsel about Jerry’s options?

What possible legal issues might Jerry encounter?

What benefits might be appropriate for Jerry?

How might you, as an attorney, assist Jerry?

42