April 07, 2020

Legal and Advocacy Services for Veterans

By Carole House

In the post-9/11 era, a “sea of goodwill” made up of organizations in the public, private, and nonprofit sectors has formed to support veterans, servicemembers, their families, and survivors. While services from nonprofit organizations and federal agencies are widely known, benefits offered by states to veterans are less so. State-level benefits, though extensive, vary widely and are often difficult to identify. To fill that gap, CNAS developed a State Veteran Benefit Finder with easily searchable information about 1,814 identified benefits. This tool allows users to filter state-level veteran benefits by type of benefit, beneficiary, and state to identify benefits for which they may be eligible, providing a unique and invaluable reference. The accompanying report, “From Sea to Shining Sea: State-Level Benefits for Veterans,” offers analysis of trends in state-level benefits and includes recommendations for an array of key stakeholders, from veterans to those who serve them, across domains.

Legal and Advocacy Services for Veterans

The federal government provides legal protections such as the federal statute called the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), which protects service members’ and veterans’ civil employment rights. While federal statutes may be more widely known, many states offer legal protections in addition to legal benefits and services. These benefits can range from establishing criterion society uses in legal treatment of veterans to providing legal counseling to veterans on a variety of issues.

Though legal and advocacy services are not the most popular benefits offered nationwide (223 of the 1,814 identified benefits), these benefits can significantly assist veterans at critical life moments, such as during court proceedings or in a successful transition from the prison system to society. These services play an important role for veterans in need, though they are not as well known or publicized as more popular benefits such as tuition assistance or property tax deductions.

Anti-Discrimination Laws and Policies Protecting Veteran Status

A total of 37 states integrate anti-discrimination protections surrounding veteran or military status directly into their state statutes. These protections do more than rely on USERRA to prohibit discriminatory employment practices toward veterans. Some states write veteran or service members directly into their base anti-discrimination statutes, establishing veterans and service members as a protected class and inherently prohibiting various types of discrimination. For example, laws may aim to prevent housing discrimination by landlords opposed to renting to service members as they may have to break a lease upon receipt of official orders to move or deploy.

There are 21 state anti-discrimination statutes or policies that appear to explicitly cover all veterans, regardless of status or type. Washington, D.C., specifies that only service members with honorable discharges are covered under their anti-discrimination law. Twenty-two states specify National Guard and Reserve members as protected from discrimination, and 13 states protect active-duty members. Oregon also includes dependents as protected persons from discrimination based on the status of their parent/spouse/guardian as a service member or veteran.

Across the country, protections from discrimination for veterans are evenly distributed across geographic regions and often pertain to protections for personnel in state defense forces (such as state militia, state guards, or state military reserves). Such protections are critical for citizen-soldiers who balance a civilian career and military duty. More specifically, these laws protect reservists and guardsmen’s employability upon return from military deployment or activation, as well as any other discriminatory practices in the workplace based upon service member or veteran status.

Most of the protections for veterans and service members codified in state statutes may be viewed as duplicative of the protections already provided at the federal level under USERRA. However, there are exclusions for many veterans from the provisions of USERRA, such as character of service requirements (e.g., a discharge under honorable conditions). Additionally, USERRA’s definition of those in “uniformed services” only covers individuals who engage in active or inactive service under a federal authority, not a state authority. Individuals in the Army or Air National Guard activated for state-level mobilizations are not protected under USERRA, and therefore would rely upon state-provided anti-discrimination protections to ensure their consistent employment and access to other services upon activation and return from activation.

Legal Assistance, Guardianship/Custodianship, and Court Procedural Accommodations

Legal assistance can provide a critical lifeline to service members in urgent circumstances including pending criminal or civil legal matters. Eight states (Connecticut, Delaware, Missouri, Nevada, Ohio, Oregon, South Carolina, and Texas) administer nine unique programs to provide legal and courtroom assistance to veterans. Of the programs in these eight states, three provide legal services to all veterans. The others only provide services to specific categories of veterans; services are based on need for homeless, indigent, or rendered-incompetent veterans (Connecticut, Oregon, and South Carolina) or based on the nature of their current service in the National Guard, Reserves, or active-duty military (Missouri, Nevada, Ohio, and Texas).

Three states (Maine, Missouri, and New Mexico) have established controls to help ensure that court proceedings do not occur while the service member is unable to be present and fairly represented. For example, child custody protections in New Mexico and Missouri ensure that custody arrangements involving a parent who is a service member cannot be modified while the parent is serving on a military deployment and can only be resolved upon the deployed service member’s return to the state. Maine’s statutes establish a much broader provision based on the discretion of the court: service members can motion to stay any legal proceedings in which they are involved. However, Maine’s law dictates that proceedings involving children may not be stayed unless determined to be in the best interest of the child. These kinds of legal nuances are relevant for veterans facing custody battles or divorce. However, veterans and their legal advocates or attorneys may be unaware of court proceeding benefits. Policymakers should consider where unfair disadvantages to service members—such as legal proceedings concurrent with stressors and other factors leading up to, during, and following deployment—may exist and where potential policy fixes could address such disparities in a manner that does not unfairly or negatively impact other parties, including children.

Three states (Alabama, Oregon, and Washington) have some type of guardianship or custodianship service for military veterans and service members that are indigent or have been rendered incompetent and incapable of managing their affairs. For example, Washington’s Veterans Estate Management Program (VEMP) offers “protective payee services” for veterans and their dependents who cannot manage their financial affairs, assuming fiduciary responsibility of the veterans’ assets (e.g., serving as a Social Security Administration-appointed representative payee for the veteran to receive and administer the veteran’s social security payments) to ensure provision of basic accommodations like housing, food, clothing, and medical care.

Jail Diversion, Treatment, and Post-Incarceration Transition Assistance

There are 46 benefits across 41 states providing services focused on assisting veterans avoid jail time or assisting veterans pre-release and post-incarceration. There are 38 states that administer programs providing special dockets and courts, or “Veterans Treatment Courts” that handle legal proceedings. Typically these courts cover veterans and service members who are diagnosed with service-related issues such as PTSD or substance abuse. Importantly, of these 38 states, 34 provide these treatment court services for any veteran regardless of characterization of service or other distinguishing factor about their veteran status. Any veteran can be in crisis and extending access to such services for all veterans, including those with dishonorable discharges, could be critical their long-term integration into lawful society. Courtroom professionals who understand some of the unique circumstances of veterans’ challenges and can facilitate access to resources honed for treatment of behavioral health and substance abuse issues can be extremely valuable in a veterans’ rehabilitation.

Benefits Counseling and Advocacy, Claims Assistance, and Records Management

Another type of legal assistance and advocacy services administered by states for veterans involves veteran benefits and records management. Departments of veteran affairs (DVAs) in all 50 states and Washington, D.C., highlighted office services assisting with benefit claims or advocating for veteran benefits. These included building awareness across underrepresented communities or shaping dialogues with state and federal policymakers to expand or enhance veteran benefit offerings. At least 15 state DVAs provide individual benefits counseling and determinations directly to service members and members, often to any veteran.

At least 29 states provide some type of records management service directly to veterans, allowing them to cheaply store records that would be relevant to applying for or claiming certain veteran benefits like disability, education, housing, etc. Some states offer free storage and either free or cheap copies of military documents, like DD-214s, while others allow for storage of records like birth certificates. South Carolina and New Hampshire provide free copies and certification of vital records for veterans at any time as long as the records relate to accessing veteran benefits and submitting claims. A total 31 of the 37 different state-level records management benefits appear to be available to all veterans.

Conclusion

Legal protections and services offered at the state level shore up critical gaps in federal law to protect members of the National Guard and Reserves residing in the state and can make a difference for veterans experiencing legal difficulty. While not the most populous benefit, legal services support veterans in acute need. Policymakers at the state level should consider eligibility requirements for such legal support and whether or not expanding eligibility for services is needed. Nonprofits can provide some of these services, though may have inconsistent coverage based off geography. Furthermore, states should consider where federal law falls short in protecting members of the National Guard and Reserves activated on state orders. Finally, states should ensure veterans are aware of their eligibility for these legal protections and services.

Read more in the CNAS Military, Veterans and Society Program's "Supporting the Veteran Community" commentary series.

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