A Rehabilitative Justice Pathway for War-Traumatized Offenders Caught in the Military Misconduct Catch-22

Abstract

The United States and Canada, among others, have recognized that “misconduct stress behaviors” can be a “hidden” by-product of war-zone deployments. The American military’s paradigm of punishment over treatment creates a “military misconduct Catch-22,” in which the service member’s treatment need is identified as a result of, or only after, violations of military law. Civilian society then bears the justice, familial, and social costs of the military’s failure to address combat stress–based misconduct. As an alternative to existing punitive military pathways, we propose a rehabilitative justice pathway that builds on the successes of civilian criminal justice mental health courts—to be implemented during active duty service, before separation from the Armed Forces. The approach, predicated on the circumstances of each case, promotes resilience, honorable discharge, and successful reintegration of service members into society.

Keywords

law military organization public policy veterans military effectiveness

Both the United States and Canada, among others, have recognized that “misconduct stress behaviors” can be by-products of military combat operations (Canadian Army Lessons Learned Centre, 2004; U.S. Department of Army, 2006, pp. 1–6). Criminal offending in the military caused by combat-related emotional derailment raises an important question of the manner in which the Armed Forces have responded to this phenomenon. Contrary to a sea change in civilian criminal justice policy that targets individuals with mental illness generally—and justice-involved veterans, specifically—for mental health treatment rather than punishment, military institutions have largely prioritized harsh punishment of military offenders with a premium on swift removal from the military and replacement with new recruits or conscripts (Seamone et al., 2014). In the United States, the consequence of punitive ejection can result in discharge characterizations that bar eligibility for health-care benefits administered by the Department of Veterans Affairs (VA), regardless of one’s need for mental health treatment (Seamone et al., 2014). Yet, even in countries that provide health care regardless of discharge characterization, such as England and Wales, involuntary separation for misconduct with the label of dishonorable or other than honorable (OTH) has tremendous shaming effects that often engender continuing mental health consequences (Howard League on Penal Reform, 2011).

The occupational hazards unique to military service in harsh combat environments may increase the risk for emotional deregulation related to combat posttraumatic stress and mild brain injury (Tanielian & Jaycox, 2008) increasing the risk for misconduct and criminal behavior. The pervasive failure to self-identify for mental health assistance leads many afflicted service members not acknowledge or enunciate the need for mental health treatment until after a precipitating crisis event, which is all-too-often arrest and other law enforcement engagements. In a study of five different nations’ military services, the major reason why service members did not seek help for mental health conditions was the perception that they would be perceived as weak (Gould et al., 2010).

The “military misconduct Catch-22” occurs when the war-zone mental health effects are unrecognized and their symptoms punished rather than treated; once punished the nature of the discharge makes treatment impossible to obtain within and once out of the military (Quill & Penaloza, 2013). In adopting a punitive model, the U.S. military has in essence criminalized mental illness in that most untreated mental health conditions stemming from combat can result in predictable type declines in work performance. Irritability, poor attention, anger outbursts are typical effects of post-traumatic stress disorder (PTSD) and mild traumatic brain injury (TBI) that result in failure to perform duties in a timely or accurate manner or may lead to an outburst in the work setting; the result in the military is unique penalties applying to inadequate duty performance under the U.S. Uniform Code of Military Justice (UCMJ), some uniquely military offenses carry a maximum of reduction to the lowest enlisted grade, 5 years confinement, and a dishonorable discharge (DD; 10 U.S.C. § 813). Behavioral health problems and postdischarge criminal actions are found in greater proportion among those service members with undesirable discharges. The numbers of service members are substantial: In the United States (2012a), the Army 2020 report listed 179,012 Chapter 14 separations for service member misconduct over the period fiscal year (FY) 2001–FY 2011. The Bureau of Justice Special Report found in its most recent prison survey that 8% of those in prison in the United States were veterans and that 24% (almost 30,000) of veteran prison inmates had military discharges that made them likely ineligible for VA health care upon release (Bronson, Carson, & Noonan, 2015). During the 10-year period of Vietnam era of military service, courts-martial cases, bad conduct discharges (BCDs), and DDs resulted in tens of the thousands of ineligible veterans, and during the first 10 years of Global War on Terror (2001–2011), almost 70,000 such cases have been documented (Seamone et al., 2014). Although the exact numbers of military personnel who occupy the nexus between combat service, behavioral health problems, and discharge status have not been calculated, Bronson, Carson, and Noonan (2015) reported that for Iraq/Afghanistan veterans alone that there were for the point-in-time 2011/2012 survey over 13,000 such combat veterans in state and federal prisons.

Moreover, the U.S. military’s continuum of federal offenses and categories of discharge categorizations create more chances for service members to be punished and involuntarily ejected from the service via punitive or administrative grounds on the basis of untreated mental health conditions. Once misconduct occurs, the military has available a number of disciplinary action options that can result in discharges which create ineligibility for VA benefits and services (Brooker, Seamone, & Rogall, 2012).

In this article, we explore the stark difference between civilian and military trends in rehabilitative justice. We do so by first briefly examining existing veteran-specific treatment court alternatives. Second, we examine how the military’s focus on immediate impacts on military readiness necessarily makes commanders shortsighted and blind to the long-term consequences of their disciplinary decisions, thus precluding use of available treatment alternatives. Lastly, we suggest an alternative pathway for the rehabilitation of combat traumatized military offenders prior to discharge that enhances morale and self-efficacy capitalizing upon the resilience-building method already in place within the U.S Armed Forces.

Approaches to Individuals With Mental Illness in the Civilian Criminal Justice System

Mental Health Courts originated from a specialized docket in Broward County, FL, that began in 1990 as part of a judicially inspired problem-solving court movement through which judges aimed to address the underlying psychiatric problems leading offenders to court on a repeated basis (Edgely, 2014). Building on the success of drug treatment courts to address crimes related to addiction, mental health courts adopted a similar system of individualized treatment plans, regular court appearances, and graduated sanctions and rewards to encourage treatment compliance and recovery. By 2014, over 400 mental health courts operated in the United States (Edgely, 2014), major Canadian cities including New Brunswick, Ottawa, Winnipeg, and Halifax (Slinger & Roesch, 2010), various courts operating in Australia throughout Tasmania, South Australia, and Queensland (Richardson & McSherry, 2010), and the United Kingdom established its first two magistrates’ mental health courts in 2009 in Brighton and Stratford (Berman & Fox, 2010).

Many of the same countries that are now facing growing numbers of veterans entangled in the criminal justice system have ironically developed specialized approaches to deal with mental illness in the civilian criminal justice system, with Canada, the United Kingdom, Australia, and the United States establishing mental health courts and other interventions specifically to prevent the criminalization of mental illness (Bermon & Fox, 2010; Richardson & McSherry, 2010; Slinger & Roesch, 2010). Although mental health courts do not operate exclusively for veteran participants, many of these programs enrolled military veterans whose mental illnesses contributed to their involvement in the criminal justice system. As combat operations in Iraq and Afghanistan continued for more than a decade, and recently returned veterans had increasing contact with criminal justice organizations, these entities came to adopt veteran-specific programs (Clark, McGuire, & Blue-Howells, 2010).

Veteran-Specific Criminal Justice Approaches

Civilian mental health and drug courts (Office of Justice Programs, 1998) and veterans treatment courts (VTCs) provide contemporary paradigms that may be instructive for military rehabilitative justice (Seamone, 2011; Russell, 2009; Seamone et al., 2014; U.S. Department of Veterans Affairs [U.S. DVA], 2015; Seamone et al., 2014). While the United States has developed the most robust systematized approach through its diversionary VTCs, other nations are currently exploring and advocating this and other alternatives. For example, similar to a growing phenomenon of specialized housing units for military veterans in American prisons and jails (Seamone, 2016), the United Kingdom has developed a segregated dorm for veteran inmates of Her Majesty’s Prison at Grendon (Brookes, Ashton, & Hollins, 2010). As countries have participated in combat and peacekeeping operations, their civilian criminal justice systems have grown to recognize increased levels of criminal involvement by veterans of those same military operations (Loughnan, 2015, p. 131). Notably, in the United Kingdom, the Howard League on Penal Reform (2011) noted that military veterans may very well be the single most represented occupation behind bars. As a representative response, an Australian criminal court remarked, “Actual exposure to prolonged danger to life in the course of service to one’s country must carry special weight in the sentencing process” ( R. v. Hicks, 1987, p. 285). Such approaches recognize how, in Australia, “generalised appreciation that soldiers deserve gratitude and sympathy, on the one hand, and that war is criminogenic and ex-soldiers have special needs, on the other, continues to impact on criminal responsibility practices” (Loughnan, 2015, p. 131). While it would be misleading and feed stereotypes of “violent veterans” and “wacko vets,” those with combat-based PTSD are at greater risk of dysregulated behavior, outbursts, display of aggression, interpersonal violence, and substance abuse (Elbogen et al., 2014; MacManus et al., 2015). Many civilian criminal justice systems have responded to veterans with mental illness by intensifying efforts to identify such veterans and offer specialized criminal justice interventions tailored to their unique experiences, stress triggers, cultural characteristics, and presentation of symptoms (Seamone et al., 2014).

Veteran-specific interventions exist a spectrum of sequential intercepts from the point of arrest, through court appearances, through confinement, and reentry into the community (Munetz & Griffin, 2006). For example, prearrest diversion is often accomplished with the assistance of a veteran counselor who can better identify with a symptomatic veteran creating a stronger connection through their shared experience. Like mental health courts, veterans courts have similar components. However, they differ with respect to the involvement of peer mentors and health services delivered through the VA and veterans organizations (Russell, 2009). After sending a team to research VTCs in the United States, the United Kingdom has developed detailed plans to incorporate a similar approach within its own court systems (Centre for Justice Innovation, 2013). Australia has also identified the importance of specially tailored approaches that draw on ex-service members common experiences to accomplish recovery objectives in a more effective manner than generic programs that do not incorporate the veteran’s lived experiences (Davey, 2015; Loughnan, 2015, p. 131).

The Military Justice Premium on Good Order and Discipline

Recurring involvement in combat and peacekeeping operations and some service members’ criminal offending while deployed during these missions have caused many nations to examine the effectiveness of their military justice systems, with some moving responsibility for administration of military law into civilian courts (Dahl, 2008). Consistent across countries, military justice will necessarily differ from civilian criminal justice based on the need for portability of the justice system, that is, the ability to administer discipline in host nations and during the course of deployments. In New Zealand, for example, the military conducted an average of 1,000 summary disposals of misconduct adjudicated by commanders, as opposed to only 10 courts-martial during a given year (Griggs, 2006). Additionally, swift and visible discipline is often necessary to ensure that young troops adhere to authority, especially during times when they are tested physically and emotionally and would otherwise be prone to lose the motivation to fight strong. Although much has changed from times when commanding officers were feared more than the enemy and deserters were shot on sight, a salient feature of military discipline remains in most Armed Forces. Namely, in the United States and several other nations, commanders retain the discretion to dispose of military offenses, often with the freedom to tailor punishments to the situations facing their commands (Seamone, 2011). A major problem in military justice occurs because the military has unique legal structures and requirements that do not exist in the civilian sector, which are designed to promote good order and discipline within the forces, such as the prohibition on disrespecting commanders, failing to appear for duty, and disobeying orders. Too often, these specialty crimes disproportionately punish symptoms of service-related mental health conditions. Beyond this, it is often the case that commanders fail to take into account the manner in which mental health conditions contribute to military offending. Too often, the premium on deterring other service members from committing similar crimes leaves offenders with combat-based disorders with few options to seek treatment prior to their ejection from the Armed Forces (Seamone, 2011). The very structure of military justice in many countries also limits the ability to implement a problem-solving rehabilitative approach. Many militaries adopt the “Anglo-American” system of justice in which commanders convene courts-martial for specific cases rather than using standing courts (e.g., the “European Continental” system; Dahl, 2008). The absence of standing courts often eliminates the option for judges to revisit cases and to implement treatment-based sentences. For our purposes, we view the problem of the Military Justice Catch-22 through the lens of the United States, with applicability to other Armed Forces military justice systems utilizing an “Anglo-American” process.

There are a cascading set of negative public health and social consequences that often follow the American military’s punitive justice (Seamone et al., 2014). Among these are unemployment, greater use of emergency services, domestic violence, family disruption, conduct and scholastic problems for children of such veterans, homelessness, escalating abuse of substance leading to health problems in the veteran including suicide (Chandra, Lara-Cinisomo, et al., 2010; Chandra, Martin, Hawkins,& Richardson, 2010; Gundlapalli et al., 2015; Rutherford, Alegria, Bzarian, et al., 2013). Seamone et al. (2014) provided a schematic of the cascading downstream negative impact of “bad paper” discharges upon society (see Figure 1a). Here we demonstrate how the proposed military rehabilitative justice pathway can be an “upstream” process that has the potential to minimize the “downstream” negative cascade (see Figure 1b). Three important “downstream” civilian effects arise from the “upstream” punitive military justice processes. Bad paper veterans face significant employment barriers and family disruption, a finding noted not just in the United States, but as well in England and Wales (Howard League on Penal Reform, 2011).

Punitive discharges cause difficulties for the veteran in obtaining civilian employment and prevent reenlistment in the Reserves or National Guard or the receipt of G.I. Bill education assistance (Chapman, 2010). In addition, veterans with punitive and administrative OTH discharges are excluded from employment and educational opportunities targeted to decreasing returning Iraq/Afghanistan unemployment. Stigmatizing discharges can prevent individuals from being bonded and insured in various occupations and will usually prevent licensure in professions as well, thus severely limiting the possibility of economic advancement for a lifetime (Slavin, 1975).

Bad paper veterans also amplify family disruption, especially for nonmilitary. The Army (U.S. Army, 2012a) reported that children of service members were 2.5 times more likely to develop psychological problems than American children in general. Moreover, children of parents deployed during war experience were described as experiencing loss and stress at unusually high levels. Demoralization of the service member within the military justice process only serves to compound combat-based psychological problems, and such distress can ultimately be borne by family members. The Army reported dramatic increases between FY 2008 and 2011 in domestic violence (50%, up from 4,827 to 7,228) and child abuse (62%, up from 3,172 to 5,149) referrals. Such outcomes are not surprisingly compounded further by punitive discharge. When symptomatic parents and spouses return to their families after ejection from military service, without the ability to obtain necessary trauma-informed mental health care, this handicap can affect families, neighborhoods, and communities at large.

Military Rehabilitative Justice: Resilience Recovery

Rehabilitative military justice requires a paradigm shift within the American military justice away from solely retributive justice and toward a reinclusion of a rehabilitative approach. This shift does not seek to avoid the imposition of any punishment whatsoever. Although it may delay, suspend, or eventually remit a stigmatizing discharge, it does not prohibit fines, reduction of rank, or other lawful consequences for misconduct. Moreover, there is historical precedent in the United States for rehabilitative justice such as the Air Force Return-to-Duty and Army Retraining Brigade (Seamone, 2011), which utilized regimentation and guidance to rehabilitate soldiers to engage effectively in combat operations. Moreover, post-World War II, there was a recognition within military courts that some service members’ criminal behavior was related to combat stress (called “soldier-patients”). These war-traumatized offenders were often allowed to retain benefits and receive care (Seamone, 2011). An additional argument for this model is that court martial, administrative, and punitive separation from the military in some instances result in loss of highly trained personnel who under certain parameters could be strengthened through rehabilitation and returned to duty. While military rehabilitative justice does not entirely apply to countries that employ standing civilian courts for military cases, there is a defensible argument that resilience recovery can serve as a model for several other Armed Forces military justice systems.

Military Resilience Research

The comprehensive soldier’s fitness (CSF; Casey, 2011; U.S. Army, 2012b) project is a prominent psychological strength building piece of the Army’s effort to promote postdeployment resilience (U.S. Army, 2010; 2013). It is grounded in Seligman’s positive psychology tenets (Seligman & Fowler, 2011) and resilience theory (Bonnano, 2004) but also tailored to military populations. The intervention utilized principles to develop psychological flexibility to promote well-being. Rather than being anchored in mental health with clinicians as the trainers, the Army utilizes noncommissioned officers as the Master Resilience Trainers (MRTs). The focus is educative rather than diagnostic or psychotherapeutic. Soldiers are provided demonstrated techniques to manage stress, maintain healthy relationships, and enhance resilience across a wide range of domains. The empirical basis for CSF resilience training is based upon research conducted at the Walter Reed Army Institute of Research (Hoge, Castro, & Eaton, 2006) and Combat Study and Mental Health Advisory Team (Joint Mental Health Advisory Team 7, 2011). CSF followed prior cognitive–behavioral-based models such as the Navy BOOT STRAP (Williams et al., 2004, 2007) and Army Battlemind programs (Adler, Bliese, McGurk, Hoge, & Castro, 2009; Castro, Adler, McGurk, & Bliese, 2012). Subsequent reviews the CSF model by Harms, Herian, Kasikova, Vanhove, and Lester (2013) have demonstrated resilience training to exert an indirect (albeit small) effect on mental health diagnoses through improvement of optimism and adaptability. Soldiers with higher levels of resilience/psychological health as measured by scores on a self-report questionnaire called the Global Assessment Tool (GAT) were less likely to test positive for drugs, commit violent crimes, or commit suicide (Lester, Harms, Herian, & Spain, 2011). Soldiers with MRTs in their unit experienced greater increases in resilience and psychological health than those soldiers without MRTs in their unit (Lester, Harms, Herian, Krasikova, & Beal, 2011). Soldiers with MRTs in the unit when compared to soldiers without such trainers had increased resilience, as measured by scores on a self-report measure the GAT. Exposure to resilience training reduced odds of receiving a mental health or substance abuse diagnosis, which had higher levels of adaptability, character, coping, friendship, and optimism than those who did not receive such training. As a caution, CSF has not been without criticism. Denning, Meisnere, and Warner (2014) have criticized that systematic evaluation needed as the effects are small and the cost thus far large (125 million). These criticisms notwithstanding, CSF materials and MRTs offer rich and untapped existing resources that can be implemented as a first step toward rehabilitating the service member with misconduct. CSF is particularly suited for those who are undergoing tremendous tests of their resilience.

Military Justice Resiliency Recovery (MJRR)

Our model, MJRR as depicted in Figure 2, offers feasible pathways for a commander to deal with misconduct in a manner that is positive for both the unit and the service member (see Figures 1b and 2). Misconduct proceedings would be suspended during this process, and the Judge Advocate General (JAG) Corps, the legal branch of each of the respective U.S. Armed Forces, maintains supervisory control through each installation’s Office of the Staff Judge Advocate’s Military Justice Divisions that are tasked with processing all UCMJ actions. MJRR is a first step in addressing the negative downstream consequences of retributive justice. It is one that allows for the service person to recapture honor through mentor-based resilience building. Service members may either remain on active duty or receive an honorable discharge. This model utilizes methods are within the ambit of commanders and military personnel regardless of their credentials as long as they are appropriately trained. While mental health treatment in tandem with the MJRR would be the ideal method, we propose resiliency building as a currently feasible and realistic venue given limited American military mental health resources. As the goal of MJRR is to rehabilitate the service member, successful completion MJRR would allow for mental health treatment via the military until discharge and through the VA at civilian reentry. The rehabilitation pathway incorporates elements of the existing VTC where community mentors serve as a liaison between the veteran and the criminal justice system and the VA toward providing treatment resources for diversion (U.S. DVA, 2015). A mentor serves as a “personal coach” helping the service member in military court strengthen core values and identifying the pitfalls that lead to the misconduct. Mentors could be drawn from within the military or recruited from the community (e.g., military police or medical branched reservist, senior in rank to the participant).

Service members with war-zone experience who can cull those experiences to develop psychological strength offer the military a cadre of individuals who are battle hardened and resilient. Rehabilitative justice can address dual goals: commander’s personnel and readiness needs as well as reducing the burden on the public related to soldiers health and legal costs who have bad discharges. As well, it offer commanders who have soldiers facing misconduct charges an alternate method to punitive justice and provides the benefit of personnel reduction costs, for example, supervision, escort of the soldier pending proceeding. The cost to the unit of supervising the soldier with misconduct is more than financial: The nondollar costs are the psychological repercussions to the unit as a whole that can drain unit deployment readiness. To avoid creating a class of U.S. veterans who are unable to receive treatment for the conditions that caused them to offend in the first place—commanders must recognize their own responsibility in this process and must be presented with the tools to generate options that can achieve discipline but also rehabilitation of the offender (Seamone, 2011). This will likely come from the senior-most commanders making this a public priority within the military services.

This proposal does not seek to remove command discretion to determine how they want to proceed with individual cases. Individualized sentencing, suspensions of discipline in lieu of treatment for combat-based stress, and problems forward a rehabilitative ethic that ultimately benefits both the service member and society. We suggest the adoption of parameters for the application of rehabilitative military justice as outlined by Seamone (2011): Specific crimes linked to combat stress (e.g., desertion, failure to obey orders, driving offenses, use of drugs/alcohol, lesser violent offenses) would result in a suspended sentence of a BCD and prison and would span a specified period (such as 18 months). Under existing U.S. military law, commanders retain the discretion to place individuals in the program. However, a presumption of eligibility for MJRR would exist if certain factors are present, for example, uncharacteristic behavior following deployment with no prior history or independent evidence of existing symptoms of service-related trauma (e.g., witnessed dissociative episodes). Commanders wishing to punish the service member without MJRR would need to articulate a reason to rebut the presumption, which can be reviewed by the next higher level of command for soundness in application. Seamone (2011) outlined the ability to suspend administrative OTH discharges on similar grounds under the service secretaries’ existing regulatory guidelines. Seamone has argued that the ideal place to develop administrative oversight over progress in the military justice system may be by assigning specific pretrial and posttrial oversight services to a member of the JAG office—either an attorney or a paralegal in every JAG office. JAG office has oversight over disciplinary plans, connections to the units where offenders are assigned, and access to disciplinary records. In our proposed model, a JAG or paralegal does not function as a probation officer, but rather as an administrator who helps to account for complete military records on progress, and so on, and filing of reports by mentors or others involved in the supervision of the service member. JAG can also be the point of identification of service members those with combat exposure and postdeployment behavioral problems whose misconduct who meets the MJRR inclusion.

Conclusion

Military justice framed within a rehabilitative template provides a proactive method prior to discharge to address and manage misconduct stemming from combat-based injuries. Importantly, it addresses disciplinary infractions in a way that is a departure from traditional adversarial jurisprudence. Beyond the utility to the military of resilience building rehabilitative military justice, combat-traumatized service members deserve the therapeutic and rehabilitative imperative as their injuries represent the consequence of faithful service to the country. Seamone and colleagues (2014) called for “moving upstream,” that is, through military rehabilitative justice addressing military offenders’ mental health needs prior to discharge, to reduce the downstream consequences of civilian maladjustment and intergenerational transmission of mental illness. Rehabilitative justice is one upstream solution that can be employed by the military. MJRR reflects a first potentially readily implementable and testable (across both treatment and cost-effectiveness) step toward rehabilitative military justice. While the prompt removal of problematic wounded warriors through retributive justice may appear expedient, it poses a heavy public health burden (Seamone et al., 2014). While we acknowledge that service members may commit crimes for reasons unrelated to mental health conditions acquired from their military service, we stress the need to identify these influences in individual cases and mobilize mitigation measures when applicable. Although there will always be a paramount need to instill discipline in the forces among young and impressionable troops, criminal offending in the military may, for some traumatized service members, be the first opportunity to address treatment needs that have been denied or concealed by the service member prior to the commission of the offense. Lastly, the consequences of ignoring this pivotal opportunity to treat military offenders prior to their discharge will ultimately serve to bring the war home to the community as ex-service members become symptomatic parents, spouses, and neighbors.

Footnotes

Authors’ Note

The views expressed in this article are those of the authors and do not necessarily reflect the position or policy of the Department of Veterans Affairs (DVA), Department of Defense or U.S. Government.

Declaration of Conflicting Interests

The authors declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The authors received no financial support for the research, authorship, and/or publication of this article.

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