A client’s past or present military service can tell a powerful mitigating story that may increase your leverage for a non-trial disposition, or lead to a better result at trial. In 2009, the U.S. Supreme Court overturned the death sentence of Korean War veteran George Porter, largely because his counsel failed to explore the mitigating potential of his military service. Porter v. McCollum, 130 S.Ct. 447 (2009). As the Court reminded readers in Porter, “Our nation has a long tradition of according leniency to veterans in recognition of their service, especially for those who fought on the front lines as Porter did.” Veterans returning from the front lines of our more recent wars stand to benefit from this same tradition. What follows are suggestions on how to frame mitigation evidence for a client who is a veteran, and where to find this evidence.
Military Service in Perspective
In spite of the heightened attention brought on by two recent and long wars, military service remains a rare calling in modern American society. According to Department of Defense statistics, there are currently 2.2 million members of the active and reserve armed force, which totals less than 1 percent of the U.S. population. Surviving veterans of all wars total a mere 22 million, or less than 10 percent of the U.S. population. Even in prisons, the most recent comprehensive Department of Justice study found that the overall state and federal incarceration rate of veterans is less than half that of non-veterans. As members of a relatively small subgroup, military veterans are likely to have unique mitigation stories compared to non-veteran clients.
Many state and federal jurisdictions have established favorable mitigation environments for military veterans. Twenty states now have special veterans courts offering small-time offenders alternatives to jail—a movement arising partly from growing concerns about the stressors of the wars in Iraq and Afghanistan.1 At least nine counties in Texas have veterans court programs, with hopefully more on the way.2
Given this broad judicial endorsement, a client’s military service can carry real weight before a fact-finder. No amount of military service is too insignificant. In common usage, “veteran” means anyone who served for any length of time in any military service branch.3 Federal law applies a narrower definition for receiving veteran’s benefits. But one does not have to had served in combat or be retired from the military in order to be considered a veteran.
How Military Service Can Lead to Mitigation Themes
The military’s small size in comparison to society at large results in a unique subculture.4 Anyone who joins this military subculture sets himself or herself apart from greater society in identifiable ways. The following themes (in parentheses) are only a few examples of what military experience can say about an individual.
If your client joined the military since 1973, he or she voluntarily joined a dangerous profession5 (theme: he/she chose a path that few do). If joining since 2001, your client voluntarily did so during a time of war (a patriot). Acceptance into the military requires mental and physical fitness (he/she was well-conditioned at the time, or had problems that the military overlooked). Joining the military involves personal and physical risk (courageous, or a risk-taker). Military culture curtails individuality for the sake of discipline (he/she tolerates or needs structure). Military training includes exposure to weapons and combat conditions (desensitized to violence). Awards of rank recognize increasing degrees of responsibility (a trustworthy person). Military service demands teamwork in stressful situations (a contributor). The military trains in identifiable job skills (valuable to society).6 Talk to your client about his or her decision to join the military, and you will likely find the start of mitigating themes.
The Other Side of Mitigation: Traumatic Military Experiences
As it did for George Porter, military service may have affected your client’s mental and physical condition, both now and at the time of the alleged crime. The plights of some recent war-torn veterans have heightened awareness of PTSD, TBI, and related conditions among service members. A widely referenced RAND report, relying on 2007 data, concluded that about one-third of Iraq and Afghanistan veterans have suffered from PTSD, major depression, and/or TBI.7 About five percent of veterans in the study reported symptoms of all three conditions.8 Recent Texas reporting has chronicled the readjustment struggles of the nearly 20,000 veterans returning to Fort Hood, which has been “the Army’s busiest deployment hub since 2001.”9
Individual reactions to combat vary widely. In a multigenerational study (of non-veterans), UCLA researchers concluded that the genetic makeup of some individuals makes them more vulnerable to PTSD, anxiety, and depression.10 In October 2010, the Secretary of Defense acknowledged during a DoD Domestic Violence Awareness Campaign that the “extraordinary stress” of multiple deployments and other military hardships has strained military families.11 And a recent Pew survey found that education level, religiosity, and other factors can help predict to what degree war returnees will have difficulty readjusting to civilian society.12 In the author’s experience, post-deployment adjustment difficulties are a frequent reason that veterans seek out mental health services.
The link between PTSD and crime is much discussed but underexplored.13 Several military legal articles have addressed PTSD and related conditions among service members involved in military legal proceedings.14 These may be useful references if your client is suffering from PTSD or TBI, particularly if he deployed to a combat zone.
The possibility of PTSD, TBI, or related conditions should be explored even if your client never served in combat. Military life offers plenty of unique stressors in garrison: long tours of duty away from home, a highly regimented lifestyle that puts junior members at the mercy of their superiors, and involvement in training exercises that replicate the horrors and difficulties of combat. Military members train around dangerous equipment, chemicals, and other hazards. Do not overlook whether the overall stresses of military life may have influenced your client’s behavior.
Military Records and Where to Find Them
Fortunately for mitigation purposes, the military is prolific at generating records. The first records request for a veteran should be the Official Military Personnel File (OMPF), which contains an individual’s official service history. Obtaining these records is much easier with your client’s cooperation. If your client is still actively affiliated with the military, he or she can sign up for an account to access records online through the Veteran’s Administration (VA).15 Separated veterans can use the same process, but only after verifying their identity at a VA Regional Office.16 For a client who is already in jail or otherwise inaccessible, the National Personnel Records Center is the best centralized source for locating and requesting personnel, medical, and psychological records.17 The Army, Air Force, Navy, and Marines also maintain their own personnel records databases for individuals who served in their components.18
Military records condense a lot of important information, so work closely with your client to unpack their meaning. For example, one of the key personnel documents in the active Army is the Enlisted Record Brief (ERB, for enlisted members), or Officer Record Brief (ORB, for officers), which is essentially a one-page military résumé that lists assignments, education, overseas service, awards, entrance test scores, and other data. In courts-martial, a certified copy of this brief is usually entered into evidence during the pre-sentencing phase of trial. Other military services have equivalent records, which provide a convenient snapshot of your client’s military service.
Pay particular attention to your client’s awards or other military accolades, as they are steeped in military tradition and history and may have significant mitigating value. Military decorations and awards have specific qualifying criteria. Their narrative descriptions can provide useful mitigation, particularly if they describe acts in combat. The Purple Heart, for example, is a well-known decoration for service members wounded in action against the enemy, among other criteria. A medal augmented with a “V” device, for example, means that the medal was awarded for acts of valor. The DoD’s Institute of Heraldry has online descriptions of the history, description, and criteria for military decorations and medals.19 The National Personnel Records Center has online information for requesting reissuance or replacement of a missing award.20
Veterans are also more likely to have well-documented physical and psychological histories than non-veteran clients. Every service member undergoes mental and physical evaluations upon joining, periodically throughout service, before and after deployments, and when separated. A Department of Defense Instruction requires detailed health assessments of all deployed service members before, during, and after deployment,21 which should include documentation of PTSD and TBI symptoms along with physical ailments. Service regulations also require PTSD and TBI screening prior to the administrative separation of a service member. The Army’s enlisted separations regulation, for example, requires high-level review and screening before a soldier with deployment-related experience can be separated for a personality disorder.22
Military Character Witnesses
Maximum mitigating impact could come from the personal testimony of those who served with your client. In George Porter’s case, his commanding officer provided what the Supreme Court called a “moving” description . . . of the two battles that he fought in the Korean War.”23 Former commanders, supervisors, peers, and subordinates are worth seeking out for insight into your client.
All armed services but the Army provide personnel locator services for both active and retired military members.24 Upon request, the VA will forward a message to any veteran within their system.25 Many military units also maintain their own publicly available web pages. Organizations such as the Veterans of Foreign Wars may be able to assist in contacting individual members. Finally, a multitude of social networks on Facebook and elsewhere have sprung up to help military members find each other.26
Collateral Consequences of a Conviction
Many veterans entitlements are affected by a state or federal conviction. Understanding the collateral consequences of a conviction for a veteran is crucial to developing a complete mitigation case.
A veteran confined in a local, state, or federal facility for a felony or misdemeanor conviction for more than 60 days loses his military pension for the length of confinement.27 This pension may, however, be redirected to a spouse or children while confined.28 Disability compensation is also reduced.29 A veteran convicted of a state or federal capital crime is not entitled to military burial honors or burial in a military cemetery.30 A veteran convicted of certain offenses related to espionage, treason, or subversive activities permanently forfeits all veterans benefits, including military burial rights, unless pardoned by the president.31 It is important to understand how these laws and regulations may affect your client.
Where Else to Go for Help
Organizations ranging from state Departments of Veterans Affairs32 to local public defender offices33 offer information for veterans involved in the criminal justice system; there may be such an organization in your area. While not involved in the criminal process, the Texas Veterans Commission is the official state information hub to help ensure veterans receive the benefits to which they are entitled.
If your client is currently a member of the active military or reserves, he or she may be entitled to the assistance of a licensed military defense attorney, or Judge Advocate, who operates somewhat like a public defender. Although Judge Advocates normally cannot represent service members in civilian proceedings, a still-active service member who is facing civilian criminal charges is likely also undergoing some type of adverse process in the military. Discovery rules in the military are broad for both administrative and criminal proceedings, and a Judge Advocate may have access to relevant information about a mutual client that could also benefit the client’s civilian case.
Reserve and retired military members can be found in every walk of life, and may be able to assist in other ways. The author is personally aware, for example, of a reserve military member who was qualified as an expert in a state criminal trial to help explain military personnel records and awards. Such experts can help an unfamiliar judge or jury understand the value of military service.
Just as you may find yourself unfamiliar with mitigation unique to military veterans, a jury or judge may be equally unfamiliar with military service. The mitigating potential of military service is well-regarded in history, the law, and current practice. As the Supreme Court recently recognized, a full exploration of mitigation for a military veteran is an effort worth pursuing.
1. Neale Gulley, Nation’s First Veterans Court Counts its Successes, Reuters, Jan. 9, 2011, http://www.reuters.com/article/2011/01/09/us-court-veterans-idUSTRE7082U020110109?pageNumber=1 (last visited DATE).
2. See http://www.tamus.edu/home/veterans/resources/courts/ (as of July 2011).
3. “What Is a Veteran?” http://www.americanwarlibrary.com/whatvet.htm#no1 (last visited Apr. 3, 2011).
4. For a good summary of military structure and demographics relevant to mitigation, see the online presentation by Patricia J. Watson, Ph.D., “Understanding Military Culture when Treating PTSD,” United States Dept. of Veterans Affairs, National Center for PTSD (updated Oct. 21, 2010).
5. Background of Selective Service, http://www.sss.gov/FSbackgr.htm (July 28, 2009)(last visited Apr. 3, 2011).
6. Every member of the military is identified with a specific job function, known as a Military Occupational Specialty (MOS) in the Army and Marines, an Air Force Specialty Code (AFSC) in the Air Force, and a Navy Enlisted Classification (NEC) for enlisted Navy members. While officers tend to generalize into a management emphasis over the course of a career, enlisted personnel tend to focus on, and become highly skilled in, their assigned occupational specialty.
7. Terri Tanielian & Lisa H. Jaycox, Ed., Invisible Wounds of War: Psychological and Cognitive Injuries, Their Consequences, and Services to Assist Recovery, RAND Center for Military Health Policy Research (2008) at xxi.
9. Jeremy Schwartz, “As soldiers leave war behind and return to Fort Hood, what comes next?” Austin-American Statesman (Nov. 5, 2011).
10. Armen K. Goenjian, et al., “Heritabilities of Symptoms of Posttraumatic Stress Disorder, Anxiety, and Depression in Earthquake Exposed Armenian Families,” Psychiatric Genetics, Dec. 2008, at 261–266.
11. Donna Miles, “Military Launches Domestic Violence Awareness Campaign,” American Forces Press Service, Oct. 4, 2010, http://www.defense.gov/news/newsarticle.aspx?id=61131 (last visited Apr. 3, 2011).
12. Rich Morin, The Difficult Transition from Military to Civilian Life, Pew Research Center, Dec. 8, 2011.
13. See, e.g., Evan R. Seamone, Attorneys as First Responders: Recognizing the Destructive Nature of Posttraumatic Stress Disorder on the Combat Veteran’s Legal Decision-Making Process, 22 Mil L. Rev. 144, 156–57 (2009).
14. See, e.g., Seamone, supra note 14; see also Evan R. Seamone, The Veteran’s Lawyer as Counselor: Using Therapeutic Jurisprudence to Enhance Client Counseling for Combat Veterans with Posttraumatic Stress Disorder, 202 Mil L. Rev. 185 (2009); Tiffany M. Chapman, Leave No Soldier Behind: Ensuring Access to Health Care for PTSD-Afflicted Veterans,204 Mil L. Rev. 1 (2010); Timothy P. Hayes, Post-Traumatic Stress Disorder on Trial, 190-91 Mil L. Rev. 67 (2006–07).
15. https://www.ebenefits.va.gov (last visited Apr. 3, 2011).
17. http://www.archives.gov/veterans/military-service-records/ (last visited Apr. 3, 2011).
18. For a listing by service component, see http://www.archives.gov/veterans/military-service-records/locations/index.html (last visited Apr. 5, 2011).
19. The Institute of Heraldry, http://www.tioh.hqda.pentagon.mil/default.aspx (last visited Apr. 3, 2011).
20. National Personnel Records Center, Military Awards and Decorations, http://www.archives.gov/st-louis/military-personnel/public/awards-and-decorations.html (last visited Apr. 3, 2011).
21. Department of Defense Instruction 6490.03, Deployment Health, Aug. 11, 2006, http://www.dtic.mil/whs/directives/corres/pdf/649003p.pdf (last visited Apr. 3, 2011).
22. See Army Regulation 635-200, Active Duty Enlisted Administrative Separations, Apr. 27, 2010 revision, paragraph 5-17.
23. Porter, 130 S. Ct. at 448.
24. DOD, Requests for Military Mailing Addresses, http://www.defense.gov/faq/pis/pc04mltr.html (last visited Apr. 3, 2011).
25. VA, Inquiry Routing & Information System, https://iris.custhelp.com/app/answers/detail/a_id/579/kw/who%20is%20a%20veteran (last visited Apr. 3, 2011).
26. See, e.g., the Military.com Military Locator, available at http://www.militarylocator.com/ (last visited Apr. 5, 2011).
27. 38 U.S.C. 1505(a).
28. 38 U.S.C. 1505(b).
29. Federal Benefits for Veterans, 2010.
30. 38 USC 2411.
31. USDOJ Guide; 38 USC 6105.
32. See, e.g., Criminal Justice Portal, Oregon Department of Veterans’ Affairs, http://www.oregon.gov/ODVA/criminal_justice_portal.shtml (last visited Apr. 7, 2011).
33. See, e.g., Louisiana Public Defender Board, A Resource for Public Defenders Representing U.S. Veteran Clients, available at http://lpdb.la.gov/index/index.php (last visited Apr. 7, 2011).