Military Sexual Assault and Harassment Reform: A Balanced Approach but What About Veterans?
An important oversight in protecting women veterans who were retaliated against for reporting sexual harassment or assault during military service.
by Kyndra Miller Rotunda
Feminism, Domestic Violence, and Veterans
Justice Moore broaches a controversial aspect of PTSD.
by Justice Eileen Moore
Veterans Treatment Court: A Lifeline for Troubled Vets
Veterans Treatment Court addresses the causes of PTSD-related crimes for the good of veterans and their loved ones.
by Judge Joe T. Perez
Bradley Erdosi: A Lawyer for Warriors
Bradley Erdosi sets the bar for service to veterans.
by Sheniece Smith
Veterans Legal Institute and Legal Aid Society of Orange County Join Forces to Connect Veterans With Family Law Services
Two Orange County organizations are helping veterans, and they need your help!
by Antoinette Balta, Scott Barnes, and William T. Tanner
Military Sexual Assault and Harassment Reform: A Balanced Approach but What About Veterans?
by Kyndra Miller Rotunda
One of the most hotly debated issues over the last few years is the growing sexual assault and harassment epidemic that plagues our nation’s military and the congressional response to it. This article analyzes key measures that have shaped the debate in Washington, including the controversial Military Justice Improvement Act, which Congress has repeatedly rejected by a narrow margin. Military Justice Improvement Act of 2013, S. 967, 113th Cong. (2013). It also discusses important provisions of the National Defense Authorization Act of 2014, which substantially overhauled the military justice system in favor of sexual assault victims. National Defense Authorization Act of 2014, H.R. 3304, Pub.L. 113-96. Congress has stepped up to help service members on active duty. But, what about those who came before military sexual assault and harassment were widely known? Congress should amend the law that governs military discharge reviews so that those who suffered retaliatory, low-level discharges after blowing the whistle on sexual assault and harassment can easily upgrade their discharges.
Laying the Groundwork
In 2013, when military sexual assault and harassment issues first became widely known in the media, Congress enacted the National Defense Authorization Act of 2013. Lawmakers and lobbyists high-fived each other and characterized the 2013 NDAA as substantive reform that would help end military sexual assault and harassment.
Well, not so fast. While the 2013 NDAA was a step in the right direction, it was by no means a panacea.1 It included fourteen provisions in four basic categories: gathering data about the extent of the sexual assault and harassment; improving military sexual assault and harassment training; incorporating reliable record keeping mechanisms; and conducting a comparative analysis of military policies vis-à-vis civilian norms. National Defense Authorization Act of 2014, H.R. 3304, Pub.L. 113-96. It called on the Pentagon to consider integrating some civilian norms into the military environment. Id.
The 2013 NDAA provisions were reasonable. After all, Congress needed to understand the nature and extent of the problem before it could effectively address the problem. Further, why wouldn’t the Department of Defense look to the civilian sector for guidance on handling sexual assault and harassment matters, particularly considering the extensive and thorough body of law that governs our civilian sector? The private sector has been grappling with this issue for decades, and they’ve no doubt learned a thing or two. The National Defense Authorization Act of 2013 was an important step, but it was only the beginning.
The Proposed Military Justice Improvement Act: Stripping Commanders of Authority
The proposed Military Justice Improvement Act (MJIA) has received significant attention over the last few years. Senator Gillibrand (D-NY) first introduced it in 2013, and has reintroduced it each year since. Numerous versions of the MJIA have existed. But, all suffered the same fate. Not a single version became law.
The proposed MJIA would limit the Military Commander’s role in responding to sexual assault allegations. Military Justice Improvement Act of 2013, S. 967, 113th Cong. (2013). It would strip commanders of their authority to decide whether a soldier accused of sexual assault should face court martial. Instead, an outside JAG officer (military lawyer) would make that decision. In each case, the Service Secretary would appoint an O-6 (Colonel) JAG, entirely outside the chain of command. That Colonel would decide whether the accused should stand trial before a Courts Martial. That decision would bind the Commander. Id.
During a Congressional Hearing on the MJIA, Chiefs of every military branch opposed and criticized the bill, saying that it misunderstands the military justice system and would potentially have no impact on military sexual assault and harassment.2
First, it assumes that commanders are biased and that appointed colonels are not. There’s just no evidence that an appointed JAG Officer, outside the chain of command, would be fairer than the commander. One commander who testified said it could even make matters worse. Independent prosecutors could be more lenient than commanders who are directly invested in disciplining their troops.
And, practically speaking, this approach would not work in a deployed setting, where commanders may not have access to an “outside” JAG Officer. After all, it is the military. Is anyone really outside?
The MJIA also mistakenly assumes that commanders act independent of the Military Justice System. Nothing could be further from reality. Commanders rely heavily on their JAG officers and it is extremely rare for a commander to disregard legal advice from the JAG. Commanders who testified before Congress made that point, which comports with my military experience. Why should the commander call an outside JAG when he or she has one assigned?
The gist of the MJIA is that victims should always have a way around biased commanders. That’s true. A check on commanders makes good sense, but a wholesale approach that cuts commanders out of the loop just wasn’t palatable to the military and to the majority of Congress. The MJIA failed, but Congress ultimately addressed the issue in the National Defense Authorization Act of 2014.
National Defense Authorization Act 2014: Striking a Balance
Congress enacted an important check on commanders’ authority in 2014 NDAA. Under that Act, a review process is automatically triggered when a commander declines to refer charges in a sexual assault case. National Defense Authorization Act of 2014, H.R. 3304, Pub.L. 113-96. The level of review depends on whether the commander acted contrary to his JAG officer’s advice. If the Commander acted against JAG advice, the case is elevated to the Service Secretary. If the commander acted in concert with his JAG officer, and decided not to refer charges, the case is forwarded to the next officer in the chain of command for review. Id.
The 2014 NDAA strikes a balance that was not present in the MJIA. It leaves commanders at the helm, while increasing scrutiny of their decisions. Commanders retain their decision-making authority but face a review when their decisions raise eyebrows. Supportable sexual assault cases will likely proceed to trial while cases that lack merit will not. The 2014 NDAA lessens the likelihood that a victim will be silenced by a rogue commander, and underscores the importance of commanders’ following the legal advice of their lawyers.
Better Enforcement for Sexual Assault Free Environments (BE SAFE) Act
The 2014 NDAA also incorporates aspects of the proposed Better Enforcement for Sexual Assault Free Environments Act, commonly referred to as the Be Safe Act. Better Enforcement for Sexual Assault Free Environments Act of 2013, S. 2013, 113th Cong. 2013. The Be Safe Act was first proposed in 2013 by Senator McCaskill (D-MO) as an alternative to the MJIA.
Under the Uniform Code of Military Justice, commanders (convening authorities) have the authority to modify sentences after trial. The Be Safe Act would have prohibited the convening authority from setting aside a guilty verdict, changing the finding to guilty of a lesser-included offense, or reducing a sentence to less than the mandatory minimum sentence. Id. After all, if a convening authority can undo a jury verdict, then what’s the point of a having a trial? Further, in the modern day military, convening authority review is unnecessary. The Military Justice System now affords substantial appellate opportunities with multiple levels of review.
The National Defense Authorization Act of 2014 incorporates the proposed Be Safe Act with only one exception. Convening authorities retain their ability to revise some minor sentences, but only when the prosecutor recommends it. National Defense Authorization Act of 2014, H.R. 3304, Pub.L. 113-96. Modifications cannot be oral. They must be in writing.
The 2014 National Defense Authorization Act incorporates significant modifications to court martial proceedings, at the beginning and end. It means that commanders cannot unilaterally impede a sexual assault case from proceeding to trial. When the case concludes, they cannot interfere with the verdict or sentence. Those measures go a long way to ensure fair trials for victims of sexual assault.
Needed Reform: Upgrading Retaliatory Discharges
While the 2014 National Defense Authorization Act improves the Military Justice System, and supports women on active duty presently experiencing sexual assault and harassment, what about all the others who came before them?
Congress should enact laws that protect veterans who endured military sexual harassment and/or assault while in service. Many suffer long-term consequences of the abuse. Chapman University’s pro bono law clinic3 has encountered veterans who were victims of military sexual assault long before 2013, when the problem became widely known. After these victims complained, they suffered extensive retaliation from their chain of commands. Consequently, some women received unjust, retaliatory, low-level discharges. It is more than a scarlet letter. Veterans with low-level discharges are barred from receiving some VA benefits.
The VA now considers PTSD (and other disabilities) stemming from Military Sexual Trauma as compensable disabilities. 38 U.S.C. § 1720D. Veterans in this category can receive care, even if they have a low-level discharge. But, they are limited in receiving compensation and other VA benefits. Id. And, most importantly, many cannot take advantage of the Post-911 GI Bill because it limits educational benefits to only those with honorable discharges. Some veterans are permanently and unfairly disadvantaged because they stood up against sexual assault and harassment. Thus, their harassment continues.
Congress should provide an easy mechanism for these women to upgrade their discharges. While redress is generally available through Discharge Review Boards, and the Boards of Correction to Military Record, Congress should enact particular measures to benefit women who suffered illegal retaliation.
Congress has previously considered, and rejected, such a measure. During the summer of 2014, Congress enacted the Clay Hunt Suicide Prevention for American Veterans Act aimed at lowering the suicide rate among service members. Clay Hunt Suicide Prevention for American Veterans Act, P.L. 114-2, February 12, 2015, 129 Stat 30. Earlier versions of the Clay Hunt Act would have amended the statute governing discharge upgrades to tip the scales in favor of service members with PTSD due to combat or military sexual trauma. It would have created a presumption of irregularity and placed the burden on the military to prove that no error or injustice occurred. But Congress dropped that provision in the version it enacted.
Congress should resurrect the discharge review provision that it excluded from the version of the Clay Hunt Act that became law. While Congress has made important headway in ameliorating ongoing sexual assault and harassment, it cannot forget all the women who still suffer today from the effects of being sexually assaulted or harassed in service.
Congress has recently enacted a number of provisions that respond to military sexual assault and harassment. The National Defense Act of 2014, in particular, provides important checks on military commanders and improves transparency within the Military Justice System, while still leaving commanders in charge. However, Congress should also provide mechanisms for veterans to upgrade retaliatory, low-level discharges. Otherwise, we leave the original trailblazers in the dust.
Kyndra Miller Rotunda is a Professor of Military and International Law and Executive Director of the Military and Veterans’ Law Institute at Chapman University. Rotunda is a former Army Major (JAG Corps) and author of two books, and a third forthcoming book, on the topic of military law, including Honor Bound, Inside the Guantanamo Trials (2008 Carolina Academic Press), Military & Veterans Law (2011 Thomson/West Publishing), and Civil Legal Remedies for Servicemembers (Forthcoming, Thomson/Reuters.)
The Military and Veterans Law Institute provides pro bono representation for military and veterans in various types of cases. Any lawyers interested in serving on our pro bono network should contact Professor Rotunda directly.
Feminism, Domestic Violence, and Veterans
by Justice Eileen Moore
Prior to the start of the battered women’s protection movement in the late 1960s, the criminal justice system treated domestic violence as a private matter in which the government had no business interfering. At shift briefings, police watch commanders told their troops something to the effect of, “Remember, if you catch a fish, you gotta clean it.” At the heart of the problem, domestic violence victims wanted to be treated with the same dignity and respect as victims of other crimes. But until the Women’s Liberation Movement, violence against women by husbands, boyfriends, and lovers remained shrouded in silence. Both law enforcement and society treated the situation as the couple’s business, and no one else’s.
During the women’s movement, the criminalization of wife-beating became part of a larger strategy to alter cultural attitudes about violence against women. In New York City, in Bruno v. Codd, 393 N.E.2d 976 (N.Y. Ct. App. 1979), twelve battered wives brought a class action lawsuit against the family court, the probation department, police, and other officials. Id. at 977. They claimed courts and police engaged in a pattern of conduct that was designed to deter battered wives from calling the police or going to court. Id. In Oakland, in Scott v. Hart, No. C-76-2395 (N.D. Cal. filed Oct. 28, 1976), another group of domestic violence victims filed a class action against the Oakland Police Department, and activists in Oakland developed the template for protective and restraining orders that enabled battered women to get into court.
For the next several decades, laws were passed around the county mandating, or at least authorizing, the warrantless arrest of a domestic violence suspect. Statutes about domestic violence now abound in all fifty states. Civil restraining orders are commonplace. Battered women’s shelters have popped up in many communities. Problem solved ... right? Well, let’s look at how it was solved. The popular belief was that all domestic violence stemmed from power and control, often within a cycle-of-violence atmosphere. But since all those statutes and other protections have been put in place, we have learned a lot about Post Traumatic Stress Disorder (PTSD) and Traumatic Brain Injury (TBI). Sometimes combat veterans have bouts of rage or violence that have nothing to do with power and control issues, but have everything to do with mental health issues resulting from combat.
There has been some level of discourse surrounding the notion that all domestic violence might not be the same. That is, “traditional” power and control violence may be different from violent outbursts resulting from the effects of combat. According to an April 2014 article in the San Francisco Chronicle, twenty-one percent of nationwide domestic violence is committed by combat veterans. Domestic abuse skyrocketed as an increasing number of soldiers returned from lengthy and repeat tours in Iraq and Afghanistan, and PTSD began to rise. Research has shown that eighty percent of those diagnosed with PTSD have committed at least one act of violence, almost half of which included strangulation, stabbing, or shooting, a phenomenon fourteen times higher than what occurs within the general civilian population. TBI also increases the likelihood of the aggression and impulsivity linked to domestic violence. See Stacy Bannerman, High Risk of Military Domestic Violence on the Home Front, S.F. Chron., April 7, 2014, http://www.sfgate.com/opinion/article/High-risk-of-military-domestic-violence-on-the-5377562.php.
As research into this area continues, it is understandable that victims’ groups are reluctant to cede any of their hard-fought victories. At the same time, we are all concerned about permanently hindering the lives of veterans who have acted out as a result of their combat service. Issuing a restraining order against a violent person is an effective tool. But once a restraining order is issued, job opportunities can be severely limited.
Many veterans are uniquely suited for law enforcement employment because of their combat experience. Cops carry guns, however, and once there is a restraining order, guns are not permitted. Section 6389(a) of the California Family Code says a person subject to a protective order shall not own, possess, purchase, or receive a firearm or ammunition while the order is in effect. Cal. Fam. Code § 6389(a) (West 2015). If violated, the person is subject to prosecution under section 29825 of the California Penal Code, which has a punishment of imprisonment of up to one year. Id., Cal. Pen. Code § 29825(a) (West 2015).
A federal statute, having nothing to do with veterans, looms over the restraining order situation as well. An amendment to the federal 1996 Gun Control Act addresses domestic violence, restraining orders, and guns. Known as the Lautenberg Amendment because it was introduced by Senator Frank Lautenberg, it provides that once a court finds a restrained person “represents a credible threat to the physical safety of [an] intimate partner or spouse,” and that person has a restraining order against him, or he has been convicted of misdemeanor domestic violence, it is unlawful for that person ever to possess a firearm. 18 U.S.C.A. §§ 922(g)(8)(B)(i), (g)(9) (West 2015).
Another sad factor complicating this whole domestic violence/restraining order situation is section 3044 of the California Family Code, which provides that, when a party has perpetrated domestic violence within the previous five years and is seeking custody of a child, there is a rebuttable presumption that an award of custody is detrimental to the best interests of that child. Cal. Fam. Code § 3044(a). The family court judge must consider the seven factors listed in the statute to decide whether the presumption has been overcome. Cal. Fam. Code § 3044. And there is nothing in those seven factors about a person’s condition as a result of serving in the military. Nor is there any sort of catch-all factor, calling for the judge to do what is equitable or just under the circumstances. Thus, a service member or veteran, who acts out as a result of a mental condition from serving in the military, will probably lose custody of the children.
The courts are faced with the prospect of issuing restraining orders to protect victims, while at the same time trying to avoid hampering those who served in our military, to the extent possible. Section 6389(h) of the California Family Code does permit the court to grant an exemption if the restrained person can show a particular firearm is necessary as a condition of continued employment and that the employer is unable to reassign the restrained person to another position where a firearm is unnecessary. But that section does not help in the job search process. In non-law enforcement jobs, it is likely employers, aware that someone with a history of violence might “go postal,” will simply skip over a person with a restraining order and select another job applicant.
At least one local judge tries to be creative in a very careful way. When faced with a member of the military or a veteran who is the party to be restrained, the judge spends quite a bit of time with the victim. Often victims do not want to obstruct a violent vet’s future; they just want to feel safe. While the temporary restraining order is in effect, the judge has the military person examined by mental health professionals to determine whether the violence was a result of the effects of combat. It seems that upon issuance of a temporary restraining order, the court makes a judicial finding and the restrained person’s name does go into the CLETS computer system (California Law Enforcement Telecommunications System) pursuant to section 6380 of the California Family Code, but upon the expiration of the temporary order, it is presumably removed. Cal. Fam. Code § 6380(a). At the next hearing date, usually the time to decide whether or not to issue a permanent restraining order, the judge, after being assured the victim feels safe and with the victim’s permission, once again issues only a temporary restraining order, sometimes for as long as a year. While the temporary order is in effect, the military person or veteran is treated for the effects of combat service. It cannot go unnoticed that this method allows the judge to avoid making the finding that the person “represents a credible threat to the physical safety of such intimate partner or child,” which also avoids the Lautenberg Amendment.
The whole area of domestic violence and restraining orders is a distinct and unique problem for veterans. Hopefully, some sort of fix is in the works.
Justice Eileen Moore is an Associate Justice for the 4th District Court of Appeal. From 1996 to 2000, Justice Moore chaired the Orange County Family Violence Council, leading the community in its response to domestic violence. For her efforts in this area, Justice Moore was twice honored by the Orange County Board of Supervisors. From 1965 until 1972, she practiced as a registered nurse, including service as a combat nurse in Vietnam. Since 2009, she has chaired the Veterans Working Group for California Courts. She is a member of Vietnam Veterans of America. Justice Moore also is the author of two books, Race Results and Gender Results. She can be reached about this article through the Editor-in-Chief at firstname.lastname@example.org.
Veterans Treatment Court: A Lifeline for Troubled Vets
by Judge Joe T. Perez
On my father’s return home from overseas at the close of World War II, he was assigned to a large troop transport ship carrying thousands of war-weary veterans. The homeward bound voyage lasted three months. The lengthy time at sea provided the veterans time to decompress from their shared war-time experiences. Many hours were spent discussing what the future would hold—what were their expectations, their hopes, and their fears?
My father was living in Santa Ana prior to his deployment. Upon his return home, he learned that an application for admission to the University of Southern California had been submitted in his name by his high school vice principal. This was an unexpected gesture of generosity and good fortune that completely changed my father’s life. Ultimately, it altered my path in life as well. My father obtained both his undergraduate and law degrees from USC, relying on the G.I. Bill to help pay for his education. He became the first Spanish-speaking attorney and judge in Orange County.
In contrast, my father-in-law’s return home from the Vietnam War took less than twenty-four hours. He was ordered to remove his uniform, which displayed a Bronze Star with the “V” Device (for Valor), before he could leave the airport. And the reason for such an order? To avoid the very real threat of being harassed both emotionally and physically upon entry into the city.
Because of the shameful way Vietnam-era vets were treated, our nation wanted to ensure that returning veterans from subsequent wars were given the respect, honor, and gratitude they deserved. Despite good intentions and hopes, however, many of our returning heroes still faced major challenges.
Post-9/11 wars have required our military to endure multiple deployments. The stress of going from a warzone to a home setting, and then back to war again, has taken a significant toll on those defending our country. Many returning veterans suffer from both visible and invisible scars. In addition to those wounds, many face other serious challenges.
Released this year, The State of the American Veteran: The Orange County Veterans Study was the first comprehensive investigation of Orange County veterans’ needs. Conducted by the USC School of Social Work, the study found that when it came time to leave the service, veterans in Orange County “were nearly unanimous in their views that if it were not for family, relatives or friends, they would have been homeless.” Carl Andrew Castro, Sara Kintzle & Anthony Hasaan, The State of the American Veteran: The Orange County Veterans Study, 22 (2015). Further, it found that 14% of pre-9/11 veterans, and 19% of post-9/11 veterans, reported a lack of consistent housing during the two months prior to being interviewed and many vets “reported fear of eviction or losing their housing ... .” Id. at 23. In fact, 17.5% of post-9/11 veterans, and 10.3% of pre-9/11 veterans, reported being homeless within thirty days of their interview. Id.
A veteran I will refer to as “Derek” is an example of what some armed service personnel face upon their return from a combat zone. Prior to joining the Marine Corps, Derek had been an easygoing, optimistic, country boy. When he came home from his deployment, he was firmly in the grip of Post-Traumatic Stress Disorder (PTSD). When he was alone, Derek was paranoid, anxious, and unable to sleep. When around other people, he was wary and hyper-vigilant—always on guard and expecting the worst outcome in virtually every situation.
Growing up in rural Kentucky, Derek had never been without his folding knife—it was part of every boy’s outdoor gear. After his return from service, he kept that trusted knife close by. However, it was no longer a utility item. That knife was now a weapon, and he was instinctively ready to kill without thinking.
Because Derek was a proud Marine, he already may have been reluctant to admit he had a problem or to ask for help, but he was completely unaware that anything was wrong. He didn’t see that being constantly on edge and suspicious of everyone and everything was a problem, or that it was the symptom of a disorder. He didn’t see any problem whatsoever with having a fully automatic AK-47 hidden in his closet.
In his toxic world, Derek’s home life fell apart. His wife descended into meth addiction. As he spiraled down, his two young children began to go astray. He hit bottom when his automatic weapon was discovered and he was arrested. Without so much as a goodbye, the children were taken away and sent to live on the other side of the country with his hostile and unsympathetic in-laws. Alone and despondent, facing twenty-one years in prison, and having lost his children and perhaps his soul, Derek was well-primed to join the legions of deeply troubled U.S. combat veterans who have sought relief from their nightmares by embracing death.
The Veteran’s Administration (VA) has confirmed that an average of twenty-two U.S. military veterans commit suicide every day. Janet Kemp & Robert Bossarte, Suicide Data Report, 15 (2012). The Orange County Veterans Study found that 44% of post-9/11 veterans screened positive for PTSD, and 46% for depression. Castro, Kintzle & Hasaan, supra, at 28. Nearly 20% have considered suicide and have developed a plan to take their own lives. Id.
This appalling statistic bears emphasizing and repeating: Nearly one in five returning combat veterans in Orange County have considered suicide and have developed a plan to take their own lives.
In the face of this deadly epidemic, the VA has redoubled its efforts to find and assist those who are at risk. Derek was discovered in jail by a VA outreach worker, who asked his attorney to consider Veterans Treatment Court—a post-plea, therapeutic alternative to incarceration that helps combat veterans overcome the issues that impede their full re-integration into society, while protecting public safety and reducing the costs associated with recidivism.
Based on the Drug Court model, Veterans Treatment Court is a highly successful collaboration of the Court, the VA, the Orange County District Attorney, the Public Defender, and the Probation Department. It is an intensive program, lasting a minimum of eighteen months, that includes mental health counseling, individual and group treatment sessions, weekly meetings with a care coordinator and a probation officer, the development of a life plan, self-help meetings, frequent and random drug and alcohol testing, and regular court-review hearings. The VA also provides residential and outpatient treatment for seriously addicted substance abusers, and handles other health-related issues. Participants are assisted in their recovery and re-entry into society by volunteer mentors, who are also combat veterans.
With the help of his Probation Officer, his treatment team, and his combat veteran mentor, Derek learned to identify and change the ways in which PTSD had altered his thinking. In court sessions, he joined in applauding the progress of the other participants, including a Vietnam veteran who had lived as an outcast for forty years in alleyways and abandoned buildings before being helped. In group therapy sessions, Derek shared his feelings with other veterans, including one who had awakened from a blackout in a jail cell only to learn that he had tried to kick down the door of a terrified immigrant family’s home. With the help of his combat veteran mentor, he also came to understand that he had the support of people who very much wanted him to survive, and who would always have his back.
Through months of dedication and hard work, Derek learned to be guided by personal responsibility, and to think about his decisions. He attended school, gained job skills, and discovered that he had a talent for welding. Because of this ability, he secured employment in a job he loves, and has even invented a patentable welding device. With the help of a volunteer attorney from Legal Aid, he regained custody of his children. When he completed the Veterans Treatment Court program, he was able to withdraw his plea, and his charges were dismissed.
Veterans Treatment Court, which has been designated a Mentor Court by Justice for Vets and the National Drug Court Institute, has a capacity of fifty participants. Midway through 2015, it had graduated seventy men and women, all of whom suffered from serious mental health and/or addiction challenges. More than 90% of these graduates, having gained the skills and tools they needed to re-integrate into society, have remained free of any further involvement with the criminal justice system.
Recently, Derek went camping with his children. Using his old folding knife, he taught them the finer points of tying on a fishhook and how to carefully trim off the excess line. He was quietly proud, deeply at peace, and grateful beyond words that he could help them to grow up smiling and strong—like their dad.
Veterans Treatment Court, under the direction of the Honorable Joe T. Perez, is convened each Tuesday afternoon at the Community Court, located at 909 North Main Street in Santa Ana. The courtroom is open to the public, and visitors are able to see for themselves the remarkable transformations that are taking place in the lives of the participants.
Combat veterans who are interested in becoming mentors to the participants are invited to contact Kim Parsons, Veterans Treatment Court Coordinator, at email@example.com.
Judge Joe T. Perez is a Superior Court Judge in Orange County, California.
Bradley Erdosi: A Lawyer for Warriors
by Sheniece Smith
On November 10, 2015, Bradley Erdosi will receive the first annual Lawyers for Warriors Award from Veterans Legal Institute (VLI) at the Center Club in Newport Beach. It is truly fitting that Brad be the first and the exemplary recipient of this award, and that all awardees follow in his footsteps. Brad has been an active and contributing member of the community for years. With a desire to be a direct part of the justice system, Brad joined the Los Angeles Public Defender’s office in 2002 where he ensured that defendants exercised every ounce of their American rights and received adequate counsel to advocate for justice.
Later, Brad moved to Orange County and proceeded to make his mark here. By day, he runs the Law Offices of Bradley S. Erdosi, offering services in the areas of estate planning, probate, and elder law. By night, he lends his time and talents to causes such as sitting on the Board of Directors for the Orange County Bar Association, teaching at Whittier Law School, and giving education presentations on estate planning, among other things. Recently, Brad also joined the Board of Directors for Veterans Legal Institute (VLI).
VLI is the nation’s only military-specific full-fledged legal aid program that provides an array of legal services to veterans free of charge. VLI aims to eradicate barriers to housing, education, employment, and healthcare, while fostering self-sufficiency. In less than a year, VLI has served over 500 local veterans, active service members, and reservists, filling the void and answering the call for pro bono legal assistance. VLI also advocates on behalf of its clients by providing community education and policy advocacy in an effort to increase awareness, resources, and overall protections to current and former members of the U.S. military. And the organization depends on lawyers to volunteer to serve the veterans in these various capacities.
Since the inception of VLI in 2014, Brad has contributed greatly to this organization’s success. Not only is Brad a board member and the Treasurer for VLI, he is also an avid volunteer. In 2014, Brad was invited to the Los Alamitos military base by Captain Antoinette Balta, who is also the President and Founder of VLI. There, Brad provided free estate plans for more than fifty reservists.
Although our service members put themselves in the line of danger for our nation every day, many of them fail to realize the importance of having an estate plan for their own families. Brad could not bear the thought of this. Not only did he work with the men and women on the base, he also followed up one-on-one with those who had more complicated situations.
Beyond being a volunteer and board member for VLI, Brad brings awareness to issues effecting veterans by his direct advocacy and educating others on the subject. Amongst many other publications and speaking events, Brad co-authored How to Avoid the Catastrophic Costs and Effects of Long Term Care, which involves how to apply for and appropriately utilize military benefits.
Brad says his knowledge of veterans law is self-taught. When he started working with veterans nearly seven years ago, it was primarily because he became aware of how underserved our veteran population is. Through Brad’s estate planning practice, he continuously saw clients who were eligible for veterans benefits, but were not even aware the benefits existed and did not have a reliable place to turn for assistance. Brad started researching veterans benefits and educating himself on how to obtain the benefits so that he could better serve his clients.
Brad recalls a case that had a significant impact on him and his client. In the process of assisting a client who had come to Brad for basic estate planning, with no knowledge that he could be eligible for veterans benefits due to his past service, Brad saw an opportunity to better the life of a deserving client. The client was a Vietnam veteran with a heart condition that was detrimental to his health. It took one-and-a-half years for Brad to work through the strenuous Veterans Administration process and paperwork, but the result was a monthly benefit of approximately $3,000 per month for the client. Brad recalls the significant difference that this benefit made for the client, and particularly how grateful the client was when he received the news. The idea that this veteran may have never discovered this benefit and would have struggled without this money was disheartening to Brad, and he was motivated to not only make veterans aware of the funds set aside for them, but also help them obtain those benefits.
Veteran benefits are often difficult to obtain due to lack of information, complicated applications, and stringent qualification guidelines. It is very difficult for many veterans to complete the process on their own. Further, veterans who are mentally or physically ill struggle with additional barriers to obtaining the assistance available to them. Attorney assistance is critical to this process.
Brad realizes that it is intimidating to go into an attorney’s office and ask for help. Veterans in distress may struggle with this even more, which could lead to their not receiving the help they need. Brad hopes that the outreach provided by organizations like VLI will ultimately make this easier for veterans by setting a tone that attorneys are here to help veterans. He wants to show appreciation for their service by giving back to them. Brad says that he receives great satisfaction from his work. He says that veterans are so appreciative although, ironically, they feel so underappreciated. Brad says, “We should be protecting our veterans. We should be helping our veterans. That is why organizations like VLI are so great.”
Recently, Brad had the opportunity to work with a 98-year-old woman who is a World War II veteran, calling the experience a “privilege.” World War II veterans are dying at a rate of approximately 492 per day. It is estimated that by 2036 there will not be any more living World War II veterans to share their experiences. See, e.g., The National WWII Museum New Orleans, Living WWII Veterans by State 2015, http://www.nationalww2museum.org/honor/wwii-veterans-statistics.html. Growing up with a father who was a nursing home administrator, Brad was raised to spend a lot of time interacting with people. He developed a great appreciation for the contributions that seniors have made to society, particularly veterans. Therefore, he really appreciated the opportunity to work with a veteran who was a part of America’s great history, especially given the rarity of women war veterans from that era.
Brad encourages other attorneys to take the time to volunteer for any cause that they can be proud of, but encourages attorneys to strongly consider helping a veteran. Brad encourages attorneys not to worry about lack of knowledge of veterans law. Organizations like VLI have the knowledge and processes to guide volunteers who are willing to learn. Attorneys can also volunteer to assist veterans in an area of the law that they already practice in.
Brad recently received the Wiley W. Manuel Award for the provision of volunteer legal services to the poor or disadvantaged, improving the law and the legal system, and increasing access to justice. Brad provided an astonishing 300 hours of pro bono legal services in 2014 to earn this award. Amazingly, Brad did not even realize how many hours he had voluntarily dedicated to others until presented with this award. Volunteerism and good will is so ingrained in his spirit and lifestyle that he did not take the time to add up the hours; he simply felt it was the right thing to do. Regarding his many volunteer hours, Brad says, “It feels American. It may sound cliché but we live in the greatest place on Earth and we owe it to each other to give back.”
Through all of his work, Brad has dedicated a significant amount of time to advocating for veterans and has proven to be a true advocate for our nation’s warriors.
Sheniece Smith is Associate General Counsel for the Children’s Hospital of Orange County (CHOC) and can be reached at firstname.lastname@example.org.
Veterans Legal Institute and Legal Aid Society of Orange County Join Forces to Connect Veterans With Family Law Services
by Antoinette Balta, Scott Barnes, and William T. Tanner
Recently David, a disabled and elderly veteran, was served with a thirty-day notice to quit. One wrinkle in what might be an otherwise ordinary case: David is the beneficiary of his late father’s trust and the trust owned the home from which he was in danger of being evicted. Days later, David contacted the Veterans’ Legal Institute (VLI) and scheduled an appointment at a joint clinic operated by VLI and the Legal Aid Society of Orange County (LASOC). As David had no intention of leaving the home in which he was entitled to stay, a volunteer attorney prepared an answer to the impending eviction, while another volunteer attorney, Jordana Furman, immediately began working on the probate case.
Jordana immediately sent a demand to produce a copy of the trust. The trustee, who had been the trustor’s caretaker and plaintiff in the eviction, initially denied the request. Jordana then filed a petition to produce the trust, and requested an accounting. The trustee hired a lawyer, and the case settled after several appearances. David now holds title to his family home, the cash left to him by his father is in his bank account, and he is no longer relying on money doled out by the trustee. A smart collaboration between VLI and LASOC has helped David to live in comfort, no longer afraid of becoming homeless.
There are many “Davids” out there whom you have the power and knowledge to help. Come volunteer at one of our clinics. A few hours can make the difference between homelessness and hope.
There are an estimated 21.8 million veterans of the U.S. armed forces.1 California has the highest number, totaling two million.2 While service members enjoy the assistance of a Judge Advocate or JAG officer while in service, those amenities are only for military related issues, and are generally no longer available once the service member separates from the military. As such, there is a huge gap in civilian legal aid for low-income veterans, particularly in the area of family law. A national epidemic on the rise, pro bono family law services are rare due to, among other reasons, the complexity, longevity, and unpredictability of family law proceedings. With California hosting the most veterans in the United States, the demand for family law services, already saturated with Vietnam era veterans, has surged after the Iraq and Afghanistan conflicts. Answering the call to service in an effort to fill the gap, Santa Ana-based VLI and LASOC are collaborating to provide relief to veterans with family law needs in the areas of child support, dissolution, paternity, custody, and visitation.
Child Support Issues
Among the major concerns of homeless veterans is child support. Child support agencies struggle with challenges in assisting veterans with child support because many veterans reside in a state different than that of the state holding jurisdiction over the child support case. Further, homeless and transient veterans are often unable to afford child support payments, which leads to what eventually becomes insurmountable arrears. It is not uncommon for a homeless veteran to have high debt owed for child support causing a lack in motivation to pay back arrears because he does not have extra funds or because his children are now adults. Moreover, with limited income, many homeless veterans realize they will never be able to satisfy the entire debt.
Child support debt may make it more difficult for veterans to find employment and housing and can also be a psychological barrier to reestablishing family relationships. Veterans who enlisted at eighteen years old and who only have a high school degree tend to take lower level jobs. Child support garnishment from already low wages, capped with high gas and transportation fees, can deter veterans from maintaining employment. The Urban Institute identified three basic reasons for the accumulation of arrears: (1) court order amounts are often set and maintained too high relative to the non-custodial parent’s ability to pay; (2) enforcement efforts have not been successful; and (3) interest accumulates on unpaid arrears at ten percent per year.
Compromise of Arrears Program (COAP)
Veterans in California who owe child support in arrears to the state (not to the noncustodial parent), may qualify for the COAP through the Department of Child Support Services (DCSS).3 According to the DCSS, COAP was established to increase support collected for families and the State General Fund, increase performance on the federal current support and arrears collection measures, and reduce arrears. COAP helps those parents who have debt accrued because their child received public assistance when they failed to pay court-ordered child support. Family Code § 17560(f)(1)(B) increases the potential compromise for parents who have been, or are currently, reservists or members of the National Guard that have been activated to military services. It is noteworthy that the Orange County DCSS employs several veterans and is proactive in assisting veterans. In fact, Steven Eldred, Director of the Orange County DCSS, is a Judge Advocate in the United States Army Reserve and has publicly stated his desire to provide effective and empowering services to veterans. Through the Orange County Veterans and Military Families Collaborative Legal/Re-entry group, Mr. Eldred has hosted yearly presentations on child support orientation for veterans in attempt to educate service providers and veterans.
A prime example of COAP’s life changing abilities is John,4 a 67-year-old Vietnam era veteran. John, a retired mill worker, owed approximately $40,000 in arrearages to the state for his three children who are now adults. John’s monthly income through social security is approximately $1,100, which barely covers his one-bedroom rental, food, and medication. Based on John’s income and life expectancy, it is unlikely that John will be able to satisfy the entire amount owed to child support. The stigma of owing so much in child support is upsetting to John and he desires to make amends with his debt. John met the eligibility requirements for COAP, and the local child support agency was able to waive close to 90% of his debt and allow up to three years for John to make payments on the remaining debt. This eases the pressure on John by allowing him an obtainable goal to pay off his child support in arrears, and DCSS gains payment.
Custody and Visitation
There is a significant uphill trend with custody and visitation issues faced by Iraq and Afghanistan veterans. Many post-9/11 veterans have minor children and need assistance with legal representation or drafting legal documents to modify custody or visitation. Veterans with custody and visitation issues are often isolated from their children with no means to hire an attorney to modify court orders. Pro bono attorneys can provide life-changing assistance with simple advice, pro per document preparation, or limited representation so that the veteran can re-engage with his or her child via a stable schedule—a service offered through the VLI-LASOC veteran family law clinic collaboration.
The rate of divorce among veterans is higher than their civilian counterparts. Many speculate that veteran divorce is higher because members of the military tend to marry younger, have higher rates of PTSD, struggle through the difficulty of deployment, and the like. Some veterans, while indefinitely separated from their spouses, are unable to finalize their divorces due to lack of finances. Without funds to hire an attorney to file for divorce, these veterans are in limbo; married but physically and emotionally separated from their spouses. This leads to other issues down the line with the veteran related to benefits, health care, insurance, and future relationships. Veterans in abusive relationships without resources to get a divorce are subject to additional psychological damage since they are still connected to their abuser. Pro bono attorneys can assist with simple document preparation to enable a veteran to apply for dissolution in pro per.
With such a slew of family law issues prevalent amongst veterans, it is incumbent upon the private bar to take action and serve our heroes. One prime example of providing creative services is the collaboration between VLI and LASOC. A perfect synergy between a military specific legal aid and a general civilian legal aid with an incubator program full of trained attorneys in family law, together these organizations have assisted well over fifty veterans to date at a joint monthly legal clinic. Clients reserve a spot in advance and come in with issues relating to child support, visitation, custody, dissolution, restraining orders, and more. Both operations credit their success to the amount of pro bono attorney volunteers assisting their respective organizations.
One client who was assisted by lawyers at the VLI-LASOC clinic was Ellen.5 Ellen is a female Marine Corps veteran who was married to a fellow service member who physically and emotionally abused her. After an event where Ellen’s ex-husband strangled her, Ellen was able to get the mental health services she needed through the South County Vet Center and decided to get a divorce. A student at a local community college living on her G.I. bill, Ellen was not able to hire an attorney or pay the filing fee for her dissolution. Ellen met a representative from Veterans Legal Institute at one of its clinics and was referred to the VLI-LASOC clinic. There, Ellen was able to get her dissolution documentation in order. Ellen is grateful to Veterans Legal Institute and the Legal Aid Society for helping to sever her abusive relationship.
With more veterans finding permanent homes in California, the need for civilian legal aid will continue to rise—be it in the area of family law, bankruptcy, veteran benefits, discharge upgrades, estate planning, or other areas of law. Should you like to assist a veteran or participate in a clinic, contact the Veterans Legal Institute or the Legal Aid Society of Orange County.
Antoinette Balta is co-founder of Veterans Legal Institute, a military-specific legal aid organization that provides pro bono legal services to former and active service members. For more information or to volunteer, please contact Antoinette at email@example.com.
William (Bill) T. Tanner is Directing Attorney at the Legal Aid Society of Orange County, a public interest law firm providing free civil legal services to low-income and selected clients. Scott Barnes is a Legal Aid attorney and Technology Project Manager. For more information or to volunteer, please contact Bill at firstname.lastname@example.org.