By all accounts, Kris Goldsmith started out as a good soldier.
He enlisted in the Army in 2003, and landed in Iraq two years later. He was trained to direct air and artillery bombardments, but was later given a new job: to chronicle for intelligence officials—in photos, interviews and written accounts—everything his unit encountered.
On May 15, 2005, the unit encountered a mass grave in a trash dump. As Goldsmith took photos in the 140-degree heat, surrounded by sewage, he watched the flies lift off the corpses and land on him.
By the time his unit returned home at the beginning of 2006, Goldsmith had changed. He was no longer “straight edge”—abstaining from drugs and alcohol. Instead, he spent Fridays and Saturdays emptying cheap plastic handles of vodka. On New Year’s Eve, fireworks triggered a panic attack.
Goldsmith was promoted to sergeant, but he continued to unravel. When President George W. Bush announced a new surge in 2006, Goldsmith knew he would be stop-lossed for another tour.
Instead, Goldsmith attempted to take his own life, but that plan was interrupted. His roommate came home, saw that Goldsmith hadn’t packed for his 5 a.m. mustering and called the police, who got to him in time.
Soon after, the military granted Goldsmith a general discharge—a step below honorable—with a note: “Misconduct: Serious Offense.”
Within two months of leaving the army, a Veterans Administration doctor diagnosed Goldsmith with severe post-traumatic stress disorder and depression, but the diagnosis did not change the terms of his discharge.
“All the signs were always there,” Goldsmith said. “It’s just that military doctors didn’t want to diagnosis me.”
The general discharge status leaves Goldsmith ineligible for a number of military benefits, including the G.I. Bill, and raises a red flag for the kinds of employers who frequently hire veterans.
“I had been a leader overseas. I had been responsible for the lives and welfare of a bunch of junior soldiers,” Goldsmith said. “You go from being a sergeant in the army to being a pizza delivery boy. It’s humiliating.”
For soldiers who are honorably discharged, the G.I. Bill provides not only tuition assistance, but also a monthly housing stipend and up to $1,000 a year for books and supplies. Soldiers with an honorable discharge also have full access to V.A. health benefits that are denied some lesser discharges, meaning that a veteran now suffering PTSD is often not eligible for the very health services that could help treat their condition.
In 2008, Goldsmith appealed his discharge status, and his case eventually set in motion a two-front effort to help veterans overcome the daunting task of petitioning the V.A. to reconsider their discharge status.
In New York, Goldsmith’s case prompted a new pilot program to connect veterans with local attorneys who could help them navigate the appeals process.
And in Washington, it led Senator Kirsten Gillibrand to introduce legislation that would mandate that professionals with PTSD experience be present for any hearings on a veteran’s discharge status.
Those efforts could have far-reaching consequences. According to a National Journal report, there were approximately 2.3 million veterans discharged between 2000 and 2013, and more than 600,000 received discharges that were less-than-honorable. And while the requests for upgrades have increased, the magazine found only about 10 percent succeed.
Veterans with a less-than-honorable discharge can apply for an appeal to upgrade their discharge, but the process is fraught with paperwork, and ultimately decided by the military.
Veterans must submit a form to a discharge review board made up of five active duty officers or senior enlisted personnel. If the application is made within a 15-year statute of limitations, a veteran can request an in-person hearing, which—for the Army, Navy and Marines—takes place in Washington. (The in-person hearing is seen as critical to the final decision, but can also be a burden for veterans who aren’t able to easily make the trip.)
Goldsmith didn’t opt for the hearing the first time he applied for an upgrade; he simply mailed his application and expected the best.
“It didn’t seem like it was going to get kicked back,” he said.
But after a year of waiting, it did. The rejection letter said that, since there was no record of a PTSD diagnosis while he was on active duty, the board would not change his status.
He sought legal counsel, and a friend recommended that Goldsmith contact the Urban Justice Center’s Veteran Advocacy Project, which, among other services, refers veterans to lawyers who can help with their status appeals.
Goldsmith was eventually connected with Stephen Lessard, a tax attorney at Orrick, Herrington & Sutcliffe and a 20-year Navy veteran.
“To me it seemed like such an obvious, slam-dunk case,” Lessard said. “I really thought that you craft a good argument and there’s no way any board could reject this.”
But a veteran must convince the board that the military failed to follow its procedures during the separation process, or they must prove an equity argument—that the status of the discharge reflects some sort of injustice done by the military to the veteran.
Upgrades due to PTSD or other service-related mental health issues generally fall under the second category.
Goldsmith’s in-person appeal would not be heard for another year. During that time, Lessard worked with him to build a case, recruiting five members who had served alongside Goldsmith to act as character witnesses, including an officer he’d served under in Iraq.
The final brief that Lessard prepared for the board was hundreds of pages in length and included exhibits, written testimony from the soldiers who served with Goldsmith, and several evaluations from psychologists—both those who had treated him as well as those from forensic psychologists, who can help show that the mental health issues were present before separation and were a result of service-related events.
When Goldsmith and Lessard arrived in D.C. for the hearing—with expenses being covered by Orrick—Lessard noticed all of the other veterans were there on their own, without counsel.
“I sat in the waiting room and saw everybody else unrepresented, and realized there’s a problem here,” Lessard said.
Shortly after the hearing, as they began the long wait for a determination, Lessard began speaking with other members of the New York County Lawyers' Association, and worked with the bar association’s pro bono committee to help train other Orrick attorneys to work on discharge cases.
Another firm, Patterson Belknap Webb & Tyler, also joined the pilot program. Both firms cover the cost of the pro bono work, as well as travel and other financial burdens facing the veterans.
“These guys don’t have the money to go to D.C. and do a personal hearing,” Lessard said. “They don’t have the money to pay an attorney. They don’t have the money to travel. They don’t have money to hire a forensic psychologist. They don’t have the money to fly witnesses in, or any of this.”
When volunteer attorneys enter the pilot, the Urban Justice Center trains them in military procedures and provides background on the need for their services.
Over the past year, the pilot has connected 13 veterans with attorneys.
Richard Chirls, a tax attorney at Orrick, said he spent over 200 hours working with his client, learning all of the details of his life so he could make the best case for an upgrade.
“Over the many months that I worked with my vet we had many face-to-face meetings,” he said. “You’ve got to learn about the person. You’ve got to learn about the facts.”
Chirls said his veteran—who he asked that Capital not name in this article—was discharged nearly 15 years ago, meaning his statute of limitations for an in-person hearing was almost expired.
He’d been a good soldier, with a good record, but had been caught smoking marijuana and received a discharge below honorable with an explanation of misconduct, Chirls said. The veteran suffered from PTSD dating back to his time of service, and was dealing with significant psychological issues. He had been unemployed and homeless for several years.
Chirls quickly compiled a 40-page brief, and a couple hundred pages of exhibits. He beat the deadline by just two days.
Chirls didn’t dispute the misconduct, but argued the discharge status was unfair, since the military has changed its policies towards low-level drug use since then.
“It’s highly unlikely that the discharge would have occurred” the same way today, Chirls said.
In early November, he became the first attorney from the pilot program to represent a veteran at an in-person hearing. The hearing was unusually long—nearly two-and-a-half hours—and, as an administrative hearing, it differed in some significant ways from a courtroom: There was no admission of evidence, and presenting the case was more of a conversation than a formal cross-examination.
Chirls saw the advantage it gave his veteran, over the five others who were awaiting their hearings, without any counsel.
“They were disadvantaged in terms of their ability to understand the system, and prepare their applications for their hearings,” Chirls said. “It was just night and day: their three-page filing, our 150-page filing.”
(As of this writing, Chirls and his veteran are awaiting a decision on the appeal.)
The New York County Lawyers' Association plans to partner with the Urban Justice Center and Fordham Law’s Feerick Center for Social Justice to expand the program, and Lessard said he hopes it will serve as a model for other bar associations around the country looking to help veterans.
In 2013, Goldsmith was attending Nassau Community College, serving as the head of a veteran-students group, when he learned his appeal had been denied.
“Just because I have the world on my side doesn’t mean the military gives a shit,” he said.
During the interview process he’d been frustrated by questions from the panel’s medical health professional. The law requires a medical professional for cases that involve PTSD, but does not mandate any expertise in mental health.
“He stated multiple times during my hearing that he did not have a background in mental health,” Goldsmith said. “He asked me to tell him the difference between adjustment disorder and PTSD.”
After his denial, Goldsmith contacted the office of Gillibrand, who sits on the Senate’s armed services committee.
Gillibrand, who has made veterans’ issues a particular focus of her time in the Senate, took an interest in Goldsmith’s case and introduced legislation that would require a board-certified psychiatrist, psychologist, or medical professional with specific training in mental health to sit on discharge panels, in cases involving PTSD and other mental health issues.
"I think it’ll go a long way as a first step towards tackling that problem," Gillibrand told Capital. "Men and women who served this nation shouldn’t be disqualified from mental health services and other health care services that they’ve earned because they’ve been misdiagnosed, or because their PTSD affected their behavior in a way that wasn’t accurately reflected. So I believe that with this change, many more men and women who served honorably will receive the discharge they should have received in the first instance."
The discharge upgrade bill was introduced in April of last year and was subsequently folded into a larger defense bill that passed both houses, and was signed into law by President Obama at the end of December.
“This is going to change a small piece,” Goldsmith said. “It’s at least going to make sure a qualified mental health professional is in the room when the decision is being made.”
But he believes that small piece could have an outsize impact, saying the lack of trained mental health professionals, in certain cases, can mean “death sentences for some veterans.”
Goldsmith is hopeful that the new bill will afford him another hearing, with a mental health specialist on the panel. He looks forward to winning that appeal, with Lessard’s help.
“If I didn’t have Steve, I would have given up by now,” Goldsmith said. “I might not even be alive right now, because of the hope that comes with having an attorney that’s pursuing justice.”
A version of this article appeared in the February edition of Capital magazine.
CORRECTION: This original version of this article referred to the New York County Law Association. It is the New York County Lawyers' Association.
By Colby Hamilton, Politico