High Quality Advocacy for Individuals with a Military Connection

1. High Quality Advocacy for Individuals with a Military Connection 2011 NLADA Conference Washington DC

2. Panelists • Pete Duffy, NGAUS; • Rachel Natelson, SWAN • Bill Russo, VA • Captain Sam Wright, ROA • Facilitator Nan Heald, PTLA

3. What we will cover • Why this work is a natural fit for legal aid programs; • “Truth or Myth” statements; • Three key groups of potential clients with a military connection; • A recent case example • Available resources to help your work • Your questions

4. Truth or Myth? • Poverty Rates among Veterans are highest for those aged 65+. FALSE • Nov 2011 report finds post 9-11 vets have highest poverty rate (12.4%) – youth, lack of post-grad education and high unemployment all contribute

6. Truth or Myth • A new Legal Services Corporation policy will require LSC funded programs to track legal services to veterans. True • Effective 2012, Form G-4: Client Age, Ethnicity and Gender asks for Veteran Status Either “Veteran” (either client or household member has served in the military, including the Reserves or National Guard) or “Non-Veteran “(neither client nor household member has served in the military, including the Reserves or National Guard)

7. Truth or Myth • Potential applicants for legal aid services will quickly volunteer whether they or a household member are veterans. FALSE • Most women and many younger men who have completed military service consider “veteran” to be someone who has seen combat duty. • Ask instead “have you or someone in your household served in the military, including the Guard or Reserve”

8. True or False • Asking about military status isn’t relevant to the provision of high quality service in traditional legal aid priority areas. FALSE • Traditional legal aid services related to rental housing, foreclosure, family law, employment, benefits, and consumer issues all can be impacted by substantive or procedural laws specific to those with a military connection.

10. Three important client groups in your client service area • Veterans who are eligible for VA services; • National Guard members; • Women who have served/ are serving in the military;

11. Overview of VA Benefits & Advocacy Presentation to the National Legal Aid & Defender Association William F. Russo Office of the General Counsel December 9, 2011 11

12. Truth or Myth • There is no easy way to prove whether someone has served in the military. False • The DD-214 form is provided to all service members veterans upon service completion.

13. DD Form 214 Report of Separation Dates of service Awards & Medals Last duty assignment and rank Military job specialty Separation information (type of separation, character of service, authority and reason for separation, separation and reenlistment eligibility codes)

14. Character of Service DoD determination on character of service can be appealed. Military service must be “under conditions other than dishonorable” to qualify for VA benefits & services. VA makes its own determination. If more than one period of service, veteran can qualify based on honorable period(s) even if last discharge was dishonorable.

16. Truth or myth? Only wounded veterans are eligible for VA health care. Myth. There are 8 categories of veterans who are eligible for VA health care, based on income as well as disability. VA offers medical centers, outpatient clinics, nursing homes, and domiciliaries, as well as Vet Centers for outpatient mental health counseling. See www.va.gov. All those currently being discharged from the military following deployment can get at least 5 years of VA health care. 16

17. Truth or myth? Veterans can get compensation for disability resulting from virtually any injury or disease that began during military service, even hemorrhoids or hypertension. Truth. As long as the disability is not the result of "willful misconduct," drug or alcohol abuse, or smoking, a veteran will be service connected, making them eligible for compensation. 17

18. Truth or myth? Veterans are prohibited from paying for attorney representation in their VA claims. Myth. Under a 2006 statutory change, veterans may hire and pay an attorney after they have been denied by the VA Regional Office and have initiated an appeal to Board of Veterans' Appeals. Veterans may retain a pro bono attorney at any time during the claims process. 18

19. Truth or myth? VA's regulations were written decades ago and are outdated, poorly organized, and difficult to understand. Truth. VA's regulations on service-connected compensation, nonservice-connected pension, and burial benefits (38 CFR part 3) are outdated, poorly organized, and difficult to understand. Fortunately, VA is reorganizing and rewriting them in plainer language. The Proposed Rule will be published early 2012. 19

20. VA Benefits & Services Largest health care system in U.S.: • 152 hospitals • 280 Vet Centers • 804 outpatient clinics • 5,316,616 veterans enrolled $48 bn Annually for Disability Benefits: • Compensation for service-connected disabilities: 3.3 million veterans. • Income Maintenance for veterans disabled from Non-service-connected cause. 310,000 veterans. 20

21. Other VA Benefits • GI Bill Educational benefits. • Vocational Rehabilitation for disabled service-connected vets. • Loan Guarantee to help vets buy homes. • Life insurance. • National Cemetery System • 131 nationwide • 74,000 interments annually 21

22. VA Veterans Justice Outreach www.va.gov/HOMELESS/VJO.asp Avoids the unnecessary criminalization of mental illness and extended incarceration Access to VHA mental health and substance abuse services when clinically indicated, and other VA services and benefits as appropriate. Each VAMC & OGC office has VJO staff. 22

23. NGAUS Legal Update December 2011 Peter J. Duffy Deputy Legislative Director

24. History of Guard Advocacy The National Guard Association of the United States (NGAUS) was created in 1878 for the purpose of providing united National Guard representation before Congress. Today, just as then, NGAUS seeks toobtain better equipment, standardized training and a more combat-ready force by petitioning Congress for resources.

25. Guard Armory Locations Army National Guard 358,200 Air National Guard 106,000 In more than 3,000 Communities

26. Guard Status Possibilities State Active Duty (SAD)- ordered into service by the governor for a state domestic matter and paid state statutory rate Title 32- serving in inactive duty training (IDT) under Title 32 USC; and paid with federally appropriated funds at drill pay rate Title 32 on active duty (AD) orders for training or other domestic duty; and paid with federal dollars the same as an active duty military member with some minor differences in allowances Title 10 active duty (AD)when ordered to active duty service in support of a contingency operation or other mission by the President or Secretary of Defense ; and paid the same as an active duty member Gray Area Retiree-retired from the Select Reserve but not having attained the age of 60; eligible for exchange, commissary and limited benefits but no retirement pay or provided medical Retired- eligible at age 60(with some exceptions) for retired pay and full medical

27. FY2011 Guard and Reserve Enlisted Pay 2011 EnlistedMonthly Drill Pay Chart Range is based on time in grade Increases at two year intervals to 38 years   E-7 $351-$632 E-6 $464-$471 E-5 $279-$$395 E-4 $256-$310 E-3 $231-$260 E-2 $219-$219 E-1 $196-$196 No Basic Housing Allowance (BAH), Basic Allowance for Subsistence (BAS) or active duty medical care outside of deployment windows May be their only source of income

28. Title 32 v. Title 10 • Command and Control • National Guard members when not deployed remain under the command and control of their governors • Guard members are not subject to the UCMJ or posse comitatus on title 32 status • Useful for domestic operations • Medical Care • G & R Can purchase TRICARE Reserve Select • 2011 member only $53.16 mo/member and family $197.76 mo • 2012 member only $54.35 mo/member and family $192.89 mo • 7% subscribed • Awaiting implementation of Section 304 S 1963 • VA care 5 years post deployment OIF/OEF • G & R receive no government (OSD) provided dwell time medical care except for service connected injuries • Active duty receive 24/7 government (OSD) provided medical care • Retirement • G & R must wait until age 60 to collect • Active duty can collect full retirement upon separation after 20 years of qualifying service- as early as age 37 • Benefits • Anomaly- Guard and Reserve members can be veterans who are still serving • Most veteran benefits require service on title 10 status • Post 9/11 GI Bill exception • Space available travel limited • Exchange and commissary privileges • No housing • Active duty receive 24/7 government (OSD) provided housing or BAH • Divorced spouse • Commissary, health care, and exchange privileges for 20/20/20 spouse • Can share in retirement • Survivor Benefit Plan • Government direct pay- must apply within • one year of divorce subject to 10 year rule

29. VA MEDICAL CARE • All U.S. Veterans of Operation Enduring Freedom (OEF) and Operation Iraqi Freedom (OIF), including those activated from the National Guard, are eligible for free Department of Veterans Affairs (VA) health care for five years • 50% OR MORE DO NOT APPLY • Reserves or National Guard members with active duty for training purposes only do not meet the basic eligibility requirement. • The very first step in obtaining access to your VA Health Benefits is to apply. If you meet the basic eligibility requirements outlined above, VA encourages you to apply today by completing VA Form 10-10EZ, Application for Health Benefitsonline. Encourage Application

30. Challenges Faced by Women Veterans Rachel Natelson Legal Director Service Women’s Action Network (212) 683-0015 x324 rachel@servicewomen.org

31. What SWAN does National Policy Reform Public Education Community Outreach and Healing Workshops National Peer Support Helplines

32. Key Issues Facing Military Women Military Sexual Trauma (MST) Don’t Ask Don’t Tell repeal implementation Reproductive Rights Women in Combat Veterans Health Care Veterans Health Administration Veterans Benefits Administration

33. Military Sexual Trauma (MST) What is MST? 38 U.S.C. 1720D defines MST as “psychological trauma, which in the judgment of a VA mental health professional, resulted from a physical assault of a sexual nature, battery of a sexual nature, or sexual harassment which occurred while the Veteran was serving on active duty or active duty for training.”

34. Veterans Health Care - Veterans Health Administration Underutilization Undertrained staff Lack of women’s clinics and women-centric treatments Second victimization of MST survivors

35. Housing and Homelessness There are currently an estimated 13,100 homeless female veterans in the U.S. Women veterans are up to 4 times more likely to be homeless than non-veteran women and male veterans Approximately 45% of homeless veterans suffer from mental health issues, 70% are affected by substance abuse issues, and 40% of female homeless veterans report experiences of sexual assault in the military Homeless women veterans are more likely to experience severe forms of mental illness than men About a quarter of female veterans in the VA’s Homelessness Programs have minor children Finding shelters that permit children and offer a safe environment is a primary obstacle for homeless women veterans

36. The Special Challenge of Unemployment • US Bureau of Labor Statistics report that our youngest veterans, aged 18 – 24, had a 30.4% jobless rate, way up from 18.4% a year ago (and as compared with15.3% for non-vets) • For veterans aged 25 – 34, the unemployment rate is 11. 7%, also well above that for non-vets • Bloomberg Business Week.com posted on Nov. 11 2011

37. Matthew King, Army National Guard • April 2008, started work at Lowe’s while a member of the National Guard; • September 2008, notified employer that he had been called to active duty, including “boots on the ground” in Iraq; • Returned home in May 2010; • Applied for the special UCX unemployment compensation benefit; • Was advised to seek old job back under USERRA; • Was re-hired by Lowe’s and then fired 2 mos later because he applied for UCX benefits; • King filed a complaint with the State DOL but no resolution; • Eventually, DOJ sued Lowe’s on his behalf • Case settled via consent decree for $45,000 in back pay and liquidated damages

38. UCX Benefits • By federal law, certain members of the military can get Unemployment Compensation based on their active duty service.  It provides weekly income to servicemembers as they look for work, including those who can find only part-time work. • http://www.statesidelegal.org/unemployment-compensation-ex-servicemembers-ucx

39. USERRA You have the right to be reemployed in your civilian job if you leave that job to perform service in the uniformed service and: • you ensure that your employer receives advance written or verbal notice of your service; • you have five years or less of cumulative service in the uniformed services while with that particular employer; • you return to work or apply for reemployment in a timely manner after conclusion of service; and • you have not been separated from service with a disqualifying discharge or under other than honorable conditions. If you are eligible to be reemployed, you must be restored to the job and benefits you would have attained if you had not been absent due to military service or, in some cases, a comparable job.

40. Other Aspects of the King Case • Client did not realize that he was entitled to USERRA protections upon return from active duty; • When he filed for unemployment, the Veteran Specialist in his State’s Office properly advised him to seek re-employment; • The employer did not relent until a lawsuit by the Department of Justice on his behalf

41. Additional Resources on USERRA and UCX • Basic info explained on www.statesidelegal.org • Interactive forms for required employer notification also on StatesideLegal • The Service Members Law Center website and its extensive Law Library

43. Other Important Legal Protections * Servicemembers Civil Relief Act [SCRA] provides protections in civil litigation for family law, foreclosure, eviction, consumer and other issues; * Extensive law library on SCRA at the ROA Servicemembers Law Center website * Client resources, including interactive letters and videos, at statesidelegal.org * there may be a State law version of SCRA in your jurisdiction – which can also be important;

44. To Do More Link/use www.statesidelegal.org Link/use www.nationalresourcedirectory.gov (national, state and local services and resources for military and veterans) Implement some/all of our “10 strategies” to improve legal aid support to military and veteran households VHA Directive 2011-034 allows VA facilities to provide free office space to legal service organizations which assist veterans (a WV law school clinic is already using this approach for a medical/legal project)

45. To Do More Funding Opportunities are limited but * VA “Supportive Services for Veteran Families” SSVF grant program includes legal services as a funded service –RFP just released at www.va.gov/homeless/ssvf.asp. ; * National Defense Reauthorization may include $500,000 for pro bono legal representation to members of the Armed Forces; * Local foundations often prioritize this client population;

46. Pete Duffy: pete.duffy@ngaus.org or phone 202-789-0031 Rachel Natelson: rachel@servicewomen.org or phone 212-683-0015 Bill RussoBill.Russo@va.gov or phone (202) 461-4902 Capt. Sam Wright: SWright@roa.org or phone 202-646-7730 Nan Heald: nheald@ptla.org or phone 207-774-4753 Today’s CLE materials will be posted atwww.statesidelegal.org/ advocate-training-resources-and-other-tools