Research and Critique

393

"TO HAVE NO YESTERDAY»': THE RISE OF SUICIDE RATES IN THE

MILITARY AND AMONG VETERANS

LINDSAY I. MCCARLI

ABSTRACT 394 I. INTRODUCTION 395

II. COMPARATIVE ANALYSIS OF SUICIDE RATES OF PAST AND CURRENT WARS 399 A. WORLD WAR I AND WORLD WAR II 399 B. VIETNAM WAR 400 C. P E R S L ^ GULF WAR (OPERATION DESERT STORM) . . 402 D. IRAQ AND AFGHANISTAN WARS (OPERATION IRAQI

FREEDOM AND OPERATION ENDURING FREEDOM) . . . 403 III. WHY IRAQ AND AFGHANISTAN SUICIDE

RATES ARE DIFFERENT 405 A. Is THE PERCEPTION A REALITY? EXPLANATIONS

FOR THE DIFFERENCES 406 1. Differences in the Wars and Conflicts

Themselves 406 2. Medical and Technological Advancements 408

B. REPORTING ACCURACY AND ITS IMPORTANCE IN PREVENTING SUICIDES 411 1. Suicide Risk and Protective Factors 412 2. Targeted Suicide Prevention Programs 413 3. Validation of Suicide Prevention Programs ... 414

C. RECENT EFFORTS TO INCREASE AND EFFECTIVELY USE METRICS 415

rV. IMPLEMENTED PROGRAMS 416 A. GOVERNMENT SPONSORED PROGRAMS 416

1. Transitional Training—From Combat back to Non-Combat and Civilian Life 416

t J.D., University ofthe Pacific, McGeorge School of Law, 2012. Lieutenant Jun- ior Grade, U.S. Navy. LTJG McCarl was a summer clerk for both the U.S. Court of Appeals for Veterans Claims in Judge Lawrence B. Hagel's chambers, and the Board of Veterans' Appeals within the Department of Veterans Affairs. Accepted into the U.S. Navy JAGC Student Program, she commissioned in May 2011. LTJG McCarl received her Bachelor of Science and Master of Engineering degrees at Cornell University in 2006 and 2007, respectively, and worked as a military contractor in the Washington, D.C, area before attending law school at Pacific McGeorge. The views and opinions expressed in this article are solely those of the author and should not be attributed to the Department of Veterans Affairs, the Department of Defense, or any of their affiliates.

394 CREIGHTON LAW REVIEW [Vol. 46

2. Programs and Initiatives Within the VA 420

B. COMMUNITY AND V S O SPONSORED EFFORTS:

HELPING VETERANS AT A LOCAL LEVEL 423

V. PROPOSED LEGAL CHANGES IN THE MILITARY, CONGRESS AND IN COURTS 425 A. BEFORE THEY LEAVE: LEGAL SOLUTIONS FROM

WITHIN 426

B. THE ROLE OF OTHER THAN HONORABLE

DISCHARGES FOR VETERANS INFLICTED WITH

MENTAL HEALTH DISORDERS 428

C. AFTER SERVICE: THE LEGAL RAMIFICATIONS

FROM CALLING THE VETERANS CRISIS LINE AND RELATED STIGMA 430

VI. CONCLUSION 431

ABSTRACT

Suicide rates in the military and among veterains have increased significantly since the beginning of the Iraq and Afghanistan wars, despite the implementation of VA-sponsored programs to help stave off deaths of our war-beaten warriors. But the VA—in addition to a number of other relevant societal and governmental actors—has sim- ply not done enough to prevent suicides among our vetersins and mili- tary personnel. The first step in resolving this tragedy is to create an accurate and thoroughly detailed data system that can track the sui- cides of all military personnel and veterans. Such a database and re- lated studies will provide government agencies the ability to accurately measure whether currently implemented or new suicide prevention programs are effective at reducing suicides, and the sys- tem will allow the government to determine which groups of military personnel or veterans have a higher risk of suicide. Additionally, laws and policies within the military justice system must be updated to ad- dress the increased suicides so as not to prevent ser\ácemembers from getting the mental health care they desperately need.

"Death must be so beautiful. To lie in the sofi brown earth, with the grasses waving above one's head, and listen to silence. To have no

yesterday, and no to-morrow. To forget time, to forgive life, to be at peace."'^

1. OSCAR WILDE, THE CANTERVILLE GHOST 23 (Picture Book Studio 1986) (1887).

2013] "TO HAVE NO YESTERDAY' 395

I. INTRODUCTION

In March 2010, the United States Department of Veterans Affairs ("VA") released a sobering statistic: every eighty minutes, a military veteran commits suicide.^ The number of suicides has increased sig- nificantly since the beginning of the Iraq and Afghanistan wars, de- spite the implementation of VA-sponsored programs to help stave off deaths of our war-beaten warriors.^ One such program, the Veterans Crisis Line, took more than 650,000 calls and claims to have saved more than 23,000 lives in the five years since its inception in 2007.^ Yet still, twenty-two veterans take their lives everyday, and a cur- rently serving sailor. Marine, soldier, or airman takes his or her life every thirty-six hours.^ The VA—in addition to a number of other rel- evant societal and governmental actors—has simply not done enough to prevent suicides among our veterans and military personnel.^

"You have two minutes to convince me not to kill myself. . . start- ing now!" said the voice of an Army veteran who called the Veterans Crisis Line.'' Chuck^ had deployed during Operation Iraqi Freedom ("OIF") to Iraq, where he received a "mild" traumatic brain injury from a detonated improvised explosive device while in combat with the enemy.^ He witnessed a close friend get seriously injured and watched several others die as a result of the combat in Iraq.^° After Chuck's deplojnment, he was diagnosed with post-traumatic stress dis-

2. MARGARET C. HARRELL & NANCY BERGLASS, CTR. FOR A NEW AM. SEG., LOSING THE BATTLE: THE CHALLENGE OF MILITARY SUICIDE 1 (2011), available at http:// wWw.cnas.org/files/documents/publication£/CNAS_LosingTheBattle_HarrellBerglass .pdf. While this is a commonly-cited release date for the statistic, the earliest report I personally found in my research was Janaary 11, 2010. See Erik K. Shinseki, Sec'y, Dep't of Veterans Affairs, Remarks at the Suicide Prevention Conference (Jan. 11, 2010), available at http://www.va.gov/opa/speeches/2010/10_0111hold.asp.

3. See infra Part ILD. 4. About the Veterans Crisis Line, VETERANS CRISIS LINE, http://www.veterans

, crisisline.net/AboutyAboutVeteransCrisisLine.aspx (last visited Nov. 6, 2012). The Vet- erans Crisis Line was named the "Nationa. Veterans Suicide Prevention Hotline," until its name-change in 2011. Id.

5. HARRELL & BERGLASS, supra note 2, at 1; JANET KEMP & ROBERT BOSSARTE, DEP'T OF VETERAN AFFAIRS, SUICIDE DATA REPORT 15 (2012), available at https://www. va.gov/opa/docs/Suicide-Data-Report-2012-final.pdf.

6. See Veterans for Common Sense v. Shinseki, 644 F.3d 845, 850 (9th Cir. 2011), reh'g en bane granted, 663 F.3d 1033 (9th Cir. 2011), vacated, 678 F.3d 1013 (9th Cir. 2012).

7. VICTOR MONTGOMERY III, HEALING SUICIDAL VETERANS: RECOGNIZING, SUPPORT- ING AND ANSWERING THEIR PLEAS FOR HELP 26-30 (2009). The account of "Chuck" in its entirety is based on Mr. Montgomerjf's personal experiences as a veterans' suicide and crisis intervention therapist. See id. at xiii-xvii.

8. For confidentiality and privacy, Mr. Montgomery changed all names and per- sonally identifiable information of those that called the Veterans Crisis Line. See id. at vii (providing an author's note).

9. Id. at 26-27. 10. Id. at 27.

396 CREIGHTON LAW REVIEW [Vol. 46

order ("PTSD") and lost his faith in religion.̂ ^ Like many veterans returning from war. Chuck did not want to seek help from the VA or other medical professionals for fear others might view him as weak and helpless.^2 fje took to the streets instead and lived under a bridge with fifteen other homeless Iraq and Afghanistan war veterans.^^

When Chuck called the Veterans Crisis Line, he challenged the answering therapist to convince him to not commit suicide with the untwisted end of a metal coat hanger he had pointed at his jugular vein as he lay sitting on his motel bed.̂ ^ After a two-hour conversa- tion with the therapist, an ambulance took Chuck to the nearest medi- cal center.15 Three months later. Chuck was at a PTSD recovery center. ̂ ^ He found his way back to his faith, and he even began a bible study with the homeless veterans under the bridge where he had lived just a few months prior. ̂ '̂ Chuck was saved—both literally and religiously—thanks to the availability of the Veterans Crisis Line and the suicide intervention therapist on the other end of the line. But not all veterans meet the same fate.

During the initial upswing of combat operations in OIF, Randen Harvey served two back-to-back deployments in Iraq from 2003 to 2005.̂ 8 While there, he was detailed to "clean up" duty: he was re- sponsible for retrieving the dead bodies of fellow soldiers and Marines—as well as civilian women and children—and ensuring the dead received proper disposal or shipment back to the United States. ̂ ^ This experience changed Randen for the rest of his life, and when the Marine Corps discharged him in November 2005 his family could see as much.̂ o Upon returning home his mother even com- mented, "[h]e looked so haunted."^! Randen was unable to sleep, could not stay long in any job (though not for lack of trying), and even- tually moved out of his room in his mother's house to the porch, where he slept with a handmade

11. Id. 12. Id. 13. Id. at 26. 14. Id. 15. Id. at 26-29. 16. Id. at 29. 17. Id. 18. Mamey Rich Keenein, Desperate Veterans Turn to Suicide, DETROIT NEWS (Apr.

16, 2009, 11:52 AM), http://www.detroitnews.com/article/20090416/'METRO/904160420/ Desperate-veterans-tum-suicide.

19. Id. 20. See id. (stating that Randen came home, "only to find he couldn't sleep, couldn't

hold a job, couldn't stand to be in public, couldn't stay sober and couldn't be around tbe family who loved him").

21. Id. 22. Id.

2013] "TO HAVE NO YESTERDAY" 397

Within four months of leaving the Marine Corps, Randen went to a VA urgent care facility claiming he could only sleep four hours a night and had cut himself on his arms.23 Two weeks later, he swal- lowed all the pills that the doctor prescribed to him and wound up back at a VA hospital.^* Yet another two weeks later, Randen was finally evaluated for and diagnosed with PTSD, agoraphobia,^^ alcohol abuse, and panic anxiety disorder.^e Merely being diagnosed with these health problems, however, did not afford Randen the mental health care he desperately needed.

On June 11, 2006, Randen walked into the sanie VA medical center and warned that he "might jump off the roof or put a hose in his car exhaust."^''' Hospital staff did not heed his threats, and just four hours later he was found on the roof of the VA facility where he had to be coaxed down by hospital security.^s He told a VA psychiatrist, "Things would be much easier if ] weren't here," yet Randen was dis- charged later that night.^^ Randen returned the next day and contin- ued to express his concerns of feeling helpless and ashamed.^o

Despite the obvious and apparent warning signs that Randen was severely depressed and suicidal—indeed, he was admitted to the De- troit VA Medical Center for an attempted suicide—the VA did nothing to address his symptoms or suicidal ideation. Randen's suicide came just three days later in his father's home,3i a suicide that the VA could have prevented if its staff adequately performed their duties.

What is most disturbing about these two stories is that they are not unique. Quite to the contrary, they are representative of the thousands of veterans and military servicemembers that struggle with suicidal ideation on a daily basis.^^

23. Id. 24. See id. (indicating Randen downplayed his overdosing of prescription pills,

stating it was '^ust a panic attack"). 25. "[A]n Einxiety disorder in which there are repeated attacks of intense fear and

anxiety, and a fear of being in places where escape might be difficult, or where help might not be available." Panic Disorder with Agoraphobia, PUBMED HEALTH, http:// www.ncbi.nlm.nih.gov/puhmedhealth/PMH0001921/ (last updated Mar. 25, 2012).

26. Keenan, supra note 18. 27. Id. 28. Id. 29. See id. (stating Randen was discharged from the hospital because he failed to

pass a breathalyzer test). 30. Id. 31. Id. 32. See RAMYA SUNDARARAMAN ET AI., CONG. RESEARCH SERV., RL34471, SUICIDE

PREVENTION AMONG VETERANS 7 (2008), available at http://www.fas.org/sgp/crs/misc/ RL34471.pdf (citing one study that found. 7.3% of veterans who use the VA outpatient clinics suffer from suicide ideation). Given millions of veterans use the VA medical cen- ters and clinics, it is clear that thousands of veterans alone suffer from suicide ideation.

398 CREIGHTON LAW REVIEW [Vol. 46

For these servicemembers to survive the battlefleld only to return home and commit suicide is a notion that reeks of depressing irony. So how can the relevant actors—federal, state, and local agencies; Veteran Service Organizations ("VSOs") and other non-governmental actors; and society in general—reverse the trend of rising suicide rates among military personnel and veterans? The ñrst thing that must be done is to create an accurate and thoroughly detailed data system that can track the suicides of all military personnel and veterans—regard- less of which war. Such a system would need to track a great deal of information about each veteran that commits suicide, including which war(s) they served during (or, in the case of peacetime veterans, the data related to those specific dates), which geographical regions they served in, and their mental health history both in the military and after. This system should also measure a plethora of other factors that may be relevant in determining the risk factors associated with suicide. Without a thorough data system of this magnitude, the rele- vant actors cannot determine a suicide program's effectiveness in preventing suicide, nor can they accurately determine which veterans and military members need help.

There are a number of programs that have been implemented by the VA, the United States Department of Defense ("DoD"), and non- governmental organizations ("NGOs") that are successful to the extent that they save lives. The problem is they have not saved enough lives. Using the aforementioned data systems to validate the effectiveness of these suicide prevention programs and highlight areas where the pro- grams are not helping certain groups of veterans or military members, these organizations can create new, or augment existing, suicide pre- vention programs for specific groups of veterans. Not only do the cur- rent programs need tweaking or further expansion to reach more veterans, but the stigma and consequences that flow from suicide at- tempts must be resolved. To do this. Congress, the DoD, and the VA must make changes in policy, statutory law, and regulatory law.

This Article will discuss the growing problem of suicide rates in the military and among veterans, including and especially among those of the Iraq and Afghanistan wars. Part II of this Article com- pares suicide rates among this younger generation with those of past wars, including both World Wars, Vietnam, and Gulf War I.̂ ^ Part III of this Article explores the reasons why the suicide rate among Iraq and Afghanistan servicemembers and veterans is different from that of prior wars.^^ This section also explains why accurate and thorough data reporting of those that commit suicide is absolutely crucial in

33. See infra notes 37-79 and accompanjdng text. 34. See infra notes 80-138 and accompanying text.

2013] "TO HAVE NO YESTERDAY" 399

solving the problem of rising suicide rates. Part IV covers some of the more successful and well-known programs that have been imple- mented in the last few years to help stave off the alarming increase of suicides in the military and among veterans.^s In closing. Part V pro- vides a variety of legal solutions to help the DoD, VA, and military commanders prevent suicides and reduce the stigma of seeking help.^s

11. COMPARATIVE ANALYSIS OF SUICIDE RATES OF PAST AND CURRENT WARS

For many of the most recent wars and military confiicts, a num- ber of organizations and federal agencies have conducted numerous studies on suicide rates among veterans of specific wars.^'' Some stud- ies like those based on Vietnam War veterans produced a long-stand- ing—yet factually inaccurate—stigma because of the vast numbers of suicidal veterans that were at a significantly higher risk of suicide than their non-veteran counterparts. Many of those studies were in- adequate and based on faulty scientific methods. The problems with these studies compounded when the media would take a single, incor- rect statement out of one of these reports and blow the statistic out of proportion. For other wars, such as the recent wars in Afghanistan and Iraq, studies are much more accurate and refiect the eerie reality of rising suicides in younger veterans. And yet, for earlier confiicts such as World War I and the Korean War, studies are sparse and un- reliable, if they exist at all.^s This section attempts to clarify the sui- cide rates among veterans of each of the major wars in the last century.

A. WORLD WAR I AND WORLD W,VR II

Little statistical information exists for military suicides during World War I ("WWI"), World War II ("WWII"), and for the veterans of these wars shortly thereafter. The few available statistical reports show that suicide rates decreased during each War, especially, and

35. See infra notes 139-96 and accompanying text. 36. See infra notes 197-228 and accompanying text. 37. Due to the lack of any reliable s'.atistics on the number of suicide attempts,

suicide attempts are not addressed in this Article, only suicide completions. See Paul Yessler, Suicide in the Military, in SUICIDAL BEHAVIORS: DIAGNOSIS AND MANAGEMENT 241, 246 (H.L.P. Resnick ed., 1968).

38. See COLEEN A. BOYLE ET AL., CTIB. FOR DISEASE CONTROL, POSTSERVICE MOR. TALiTY AMONG VIETNAM VETERANS 58 (1987), available at http://www.cdc.gov/nceh/veter- ans/pdfs/postservicemortalityamongvietnamveterans/ postservicemortalityamongvietnamveteransl_2.pdf ("[T]he findings for the World War II and Korean War Army veterans are no- particularly enlightening for deaths due to suicide . . . because of small number of such deaths and the lack of data on suicide . . . risks according to time period after discharge.").

400 CREIGHTON LAW REVIEW [Vol. 46

most noticeably, during WWI.̂ s Suicide rates among enlisted service- men decreased from 50 per 100,000 men at the beginning of WWI to just 7 per 100,000 at the end of WWII.*° Even with this overall de- crease in the suicide rates among enlisted servicemen, one study con- ducted within ten years of WWII revealed that veteran suicide rates were still three times greater than that of civilians of the same age.*^ What may be even more telling, however, are the suicide rates of the WWII generation of military fighters today.

In a 2010 study conducted by the California Department of Public Health, the Department found that California WWII veterans were committing suicide at a rate two times greater than younger genera- tions of veterans—veterans that had recently returned fi-om the con- flicts in Afghanistan and Iraq.*^ This analysis also found that this same group of veterans, those aged eighty and older, were committing suicide at a rate four times that of the non-veteran populace in the same age group.'*^

B. VIETNAM WAR

During the Vietnam War, there were relatively few suicides among active duty servicemembers. For the entire duration of the conflict, only 382 military members committed suicide.*^ This is in stark contrast to the number of suicides among those who served in later conflicts.*^ However, this may have been a temporary—and arti- ficially low—statistic when considered with the number of veterans that committed suicide after they left service.*^

The Vietnam War is infamous for its stigma of record-high num- bers of suicides among those who served in Vietnam area of operation. Disabled American Veterans, a national veteran service organization, published a booklet in 1980 that alleged an unusually high number of

39. FEDERICO SANCHEZ, UNDERSTANDING SUICIDE AND ITS PREVENTION 41 (2010). However, part of this overall decrease may have been offset by overall trends among the population; civilian suicide rates declined during these same periods. See GEORGE HOWE COLT, NOVEMBER OF THE SOUL: THE ENIGMA OF SUICIDE 247 (2006).

40. SANCHEZ, supra note 39, at 41. 41. HAROLD I. KAPLAN & BENJAMIN J. SADOCK, CLINICAL PSYCHIATRY: FROM SYNOP-

SIS OF PSYCHIATRY 1834 (1988). 42. Aaron Glantz, Veteran Suicides by Age, BAY CITIZEN (S.F.) (NOV. 11, 2010, 8:22

AM), http://www.baycitizen.org/veterans/interactive/veterans-day-suicide-rates-age/. 43. Id. 44. Statistical Information About Fatal Casualties of the Vietnam War, NAT'L

ARCHIVES (Apr. 29, 2008), http://www.archives.gov/research/military/vietnam-war/ casualty-statistics .html.

45. See infra Part ILD. 46. See discussion infra Part III .A.

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suicides among Vietnam veterans.'*'' The booklet claimed that more Vietnam veterans had lost their lives to suicide after the war than those servicemembers killed in combat.^^ In the decade that followed, the media was rampant with unsubstantiated suicide rates among Vi- etnam veterans."*^ In 1985, one magazine reported that an astounding 58,000 Vietnam veterans committed suicide.^^ Within one year, the reported number was "more than 60,000."^! By 1987, media outlets touted that over 100,000 Vietnam veterans committed suicide.^^

Despite the widespread news articles,^^ books,^* and television broadcasts'^ providing these scientiflcally unsubstantiated and shock- ing suicide numbers, the reality was vastly different. The flrst major study to dispute the mainstream media's claims was conducted in early 1990. This study revealed that the number of Vietnam veteran suicides was closer to 9,000 total.^^ The study speciflcally disputed the claim that the risk of suicide for Vietnam veterans was six to eleven times greater than that of men in the general population—the increased suicide rate for Vietnam veterans was only one and a half times greater than that of men of a similar age in the general popula- tion.s'̂ This claimed higher rate of suicide—and thus the overinflated estimates of Vietnam veterans that committed suicide—was due to faulty scientiflc extrapolation of statistics. Dr. Daniel A. Pollock ex-

47. DISABLED AM. VETERANS, POST-TRAUMATIC STRESS DISORDERS OF THE VIETNAM VETERAN 11 (Tom Williams ed., 1980).

48. Id.; see also Statistical Information About Fatal Casualties of the Vietnam War, supra note 44 (stating that 58,193 servicemen and women died between 1956 and 1998 as a result of the Vietnam conflict). It is interesting that, in later editions of this book- let, this reference was deleted. Michael Kelley, The Three Walls Behind the Wall: The Myth of Vietnam Veteran Suicide, VIETNAM MEMOIRS, http://ndqsa.com/suicide.btml (last updated Aug. 18, 1998).

49. See Daniel A. Pollock et al.. Estimating the Number of Suicides Among Vietnam Veterans, 147 AM. J. PSYCHIATRY 772, 772 (1990), available at http://www.ap.psychiatry- online.org/data/Joumals/AJP/3534/772.pdf.

50. John Langone, The War that Has No Ending, DISCOVER, June 1985, at 6. 51. DUNCAN SPENCER, FACING THE WALL: AMERICANS AT THE VIETNAM VETERANS

MEMORDVL 9 (1986). 52. CBS Reports: The Wall Within (CBS television broadcast June 2, 1988); 60

Minutes: Vietnam 101 (CBS television broadcast Oct. 4, 1987). Tbe former. The Wall Within, bas since been questioned as to the validity of the veterans interviewed. See generally B.G. BURKETT & GLENNA WHITLEY, STOLEN VALOR: HOW THE VIETNAM GENER- ATION WAS ROBBED OF ITS HEROES AND ITS HISTORY (1998).

53. See, e.g., R. Anderson, Vietnam Legacy: Veterans' Suicide Toll May Top War Casualties, SEATTLE TIMES, Mar. 18, 1981, at 1.

54. E.g., UNWINDING THE VIETNAM WAR: FROM WAR INTO PEACE 7-8 (Reese Wil- liams ed.,1987).

55. See supra note 52 and accompsinying text. 56. Pollock et al., supra note 49, at 774. Dr. Pollock and his colleagues based their

research primarily on death certificates £ind medical panel determinations of those deaths of Vietnam veterans through 1984. Id. at 773.

57. Id. at 774.

402 CREIGHTON LAW REVIEW [Vol. 46

plained in the study that a "higher rate of suicide was observed among Vietnam veterans during the first five years after discharge from ac- tive duty," and mainstream media improperly assumed that this higher rate of suicide would continue from the early 1960s through the late 1980s.̂ ^ But the opposite occurred: "thereafter Vietnam veterans were at a relatively low risk of suicide."^^ In sum, there was "no evi- dence to confirm the large numbers of suicides that have been re- ported in the print and broadcast news media."^° More recently, in 2004, a thirty-year follow up study showed that Vietnam veterans had suicide rates lower than their non-veteran counterparts.^^

As discussed in more depth in Part III.B of this Article, the errors of reporting inaccurately high suicide rates among Vietnam veterans serve as a warning to United States Department of Veterans Affairs ("VA"), the United States Department of Defense ("DoD"), and other reporting agencies. It is imperative that suicides are neither underre- ported, as Dr. Pollock caveats in his study,^^ nor over-reported, as in the widely-reported media outlets. Otherwise, the agencies responsi- ble for recognizing risk factors and preventing veterans from con- ducting suicide cannot effectively save lives.̂ 3

C. PERSIAN GULP WAR (OPERATION DESERT STORM)

As opposed to those of the Vietnam War, soldiers and veterans of the Persian Gulf War̂ ^ do not have the false stigma of, nor the scien- tific evidence demonstrating, a higher suicide risk.^^ With respect to military personnel, a number of studies found the suicide rates among those serving in the Persian Gulf War were up to fifty percent less

58. Id. 59. Id. 60. Id. at 775. 61. Tegan K. Catlin Boehmer et al.. Postservice Mortality in Vietnam Veterans, 164

ARCHIVES OF INTERNAL MED. 1908, 1913 (2004).

62. Pollock et al., supra note 49, at 774. 63. See Mark A. Zamorski, Suicide Prevention in Military Organizations, 23 INT'L

REV. PSYCHIATRY 173, 177 (2011); see also Lisa A. Brenner et al.. Suicide and Traumatic Brain Injury Among Individuals Seeking Veterans Health Administration Services, 26 J. HEAD TRAUMA REHABILITATION 257, 262-63 (2011).

64. By "Persian Gulf War," codenamed Operation Desert Storm, I am referring to hostilities between August 2, 1990, and February 28, 1991. 38 U.S.C. § 101(33) (2012); 38 C.F.R. § 3.2(i) (2012); The Operation of Desert Shield/Desert Storm Timeline, U.S. DEP'T DEF., http://www.defense.gov/news/newsarticle.aspx?id=45404 (last visited Mar. 10, 2013) ("Cessation of hostilities declared, 8:01 a.m., Feb. 28 (12:01 a.m. Eastern).").

65. See Harold Braswell & Howard I. Kushner, Suicide, Social Integration, and Masculinity in the U.S. Military, 74 Soc. Sci. & MED. 530, 530 (2012) (providing that 2006 marked the highest rate of suicides among active duty soldiers since the U.S. Army began collecting such statistics in 1980—10 years before the start of the Persian Gulf War).

2013] "TO HAVE NO YESTERDAY" 403

than their civilian counterparts. 6̂ With respect to veterans, most studies reveal that Persian Gulf War veterans had little or no in- creased risk of suicide compared to other veterans or the non-veteran general population. A medical study conducted a few years after the end of the Persian Gulf War revealed that, as compared to veterans who did not serve in the Persian Gulf War, veterans of the Persian Gulf War had nearly identical suicide rates three years after hostili- ties ended.^'' Later studies have confirmed this early finding.^» These same studies also found that Persian Gulf War veterans were not com- mitting suicide at rates higher than the general population.^^

D. IRAQ AND AFGHANISTAN WARS (OPERATION IRAQI FREEDOM AND OPERATION ENDURING FREEDOM)

While the mantra of staggering Vietnam suicide rates was grossly inaccurate, the staggering suicide rates for the wars in Iraq and Af- ghanistan is a depressingly accurate statement. To date, the Iraq and Afghanistan Wars have resulted In 6,653 casualties.'^" This number could shortly be eclipsed by the number of servicemembers that com- mit suicide while in service or shortly thereafter.'''^ At least 4,700 ser- vicemembers and veterans have committed suicide since operations in the Middle East began in 2001.''2 Tĵ ig number is comprised of ap-

66. Martin J. Mahon et al.. Suicide Among Regular-Duty Military Personnel: A Ret- rospective Case-Control Study of Occupation-Specific Risk Factors for Workplace Sui- cide, 162 AM. J . PSYCHIATRY 1688, 1689 ti l . l (2005) (citing two studies in which the suicide rate among military personnel was approximately half that of the civilian population).

67. For Persian Gulf War veterans, suicide made up 1.53% of all deaths in the three years after the war. For veterans that did not serve in that war, suicide made up 1.54% of deaths. Han K. Kang & Tim A. Bullman, Mortality Among U.S. Veterans ofthe Persian Gulf War, 335 NEW ENG. J. MED. 1498, 1500 tbl.2 (1996).

68. Zamorski, supra note 63, at 174 (citing Gregory C. Gray & Han K. Kang, Healthcare Utilization and Mortality Among Veterans ofthe Gulf War, 361 PHIL. TRANS- ACTIONS ROYAL SOC'Y: BIOLOGICAL SCI. 552 (2006)).

69. See id. 70. U.S. Casualty Status, U.S. DEP'T DEF. (Jan. 11, 2013, 10:00 AM), http://www

.defense.gov/news/casualty.pdf There were 4,422 casualties as a result ofthe Iraq War (OIF). Id. To date, there have been 66 deaths due to support operations in Iraq (Opera- tion New Dawn) and 2,165 casualties due to the Afghanistan War (OEF). Id.

71. Though this Article focuses more on veteran suicide rates than those of active duty military personnel, the number of suicides among active duty servicemembers is quite telling, given the low number of actual casualties due to the Iraq and Afghanistan Wars. I use these figures here to highligh: and compare the number of suicides in the last 10 years with those of the wars during the same time.

72. ALAN BERMAN ET AL., U.S. DEP'T DF DEF., THE CHALLENGE AND THE PROMISE: STRENGTHENING THE FORCE, PREVENTING SUICIDE, AND SAVING LIVES 41 tbL6-l (2010), available at http://www.health.mil/dhb/downloads/Suicide%20Prevention%20Task%20 Force%20final%20report%208-23-10.pdf (providing that between 2001 and 2009, there were 1,917 deaths among all U.S. military branches, including the Reserves and Na- tional Guard); see Richard L. Dixon, Jr., Knowing and Caring: Leadership and the Pre-

404 CREIGHTON LAW REVIEW [Vol. 46

proximately 2,810 military personnel who have committed suicide while on active duty, and at least an additional 2,000 Operation En- during Freedom and Operation Iraqi Freedom ("OEF/OIF") veterans through the end of 2011.''^ Somewhat shockingly, this number of vet- erans includes only those in the OEF/OIF conflicts; estimates indicate that at least 6,256 veterans from all conflicts committed suicide in 2005 alone.''^ Even more appalling, the VA estimates that at least 6,500 veterans of all conflicts—nearly the equivalent to all casualties of the two wars in the last decade, and three times the estimated num- ber of OEF/OIF veterans who committed suicide'^^—committed sui- cide each year since 2005.'^^

While every life lost to suicide is a tragedy, the annual rates of suicide among OEF/OIF servicemembers have actually been lower than that of civilian populations until just recently. The suicide rate among active duty Army soldiers, for example, was actually below that of the civilian population from 1980 thru 2005 J'̂ Suicide rates among active duty Air Force airmen were similarly lower than their civilian counterparts from the mid-1990s thru 2008.'̂ ^ However, despite the

vention of Military Suicides, SMALL WARS J. (Feb. 16, 2012, 8:25 AM), http:// smallwarsjoumal.com/jrnL'art/knowing-and-caring-leadership-and-the-prevention-of- military-suicides (disclosing military personnel, including Reservists and National Guardsmen, who committed suicide in 2010 was 453, and 447 for 2011); Michael Moran, U.S. Military Suicides High Even as Wars Wind Down, GLOBAL POST (Feb. 10, 2012, 6:03 AM), http://www.globalpost.com/dispatch/news/regions/americas/united-states/ 120208/us-military-suicides-high-even-wars-draw-down (citing more than 2,200 Iraq and Afghanistan veterans committed suicide within two years of leaving service); see also ERIN BAGALMAN, CONG. RESEARCH SERV., R41921, SUICIDE, PTSD, AND SUBSTANCE USE AMONG OEF/OIF VETERANS USING VA HEALTH CARE: FACTS AND FIGURES 2 (2011), available at http://www.fas.org/sgp/crs/misc/R41921.pdf. Given twice as many OEF/OIF veterans are eligible for the VA healthcare system but have not used it in the last 10 years, this may be a gross underestimation of actual suicides among OEF/OIF veterans. Nonetheless, this is the rate most commonly cited in news articles, VA news releases, and other studies. For an explanation of why so many of these reports and statistics under-represent the actual number of active duty servicemembers and veterans who commit suicide, see Pollock et al., supra note 49, at 774 ("[T]he projections . . . could be underestimates of substantial numbers of . . . veteran suicides were not reported as suicides on death certificates.").

73. See supra note 72 and accompanying text. 74. Armen Keteyian, Suicide Epidemic Among Veterans, CBS NEWS (Feb. 11, 2009,

3:53 PM), http://www.cb£news.corá/stories/2007/ll/13/cbsnews_investigates/main3496 471.shtml ("[Unjust.. . 45 states, there were at least 6,256 suicides among those who served in the armed forces. That's 120 each and every week, in just one year.").

75. See supra note 72 and accompeinjdng text. 76. See Shinseki, supra note 2. 77. BERMAN ET AL., supra note 72, at 17. 78. See Tom Spoth, AF Suicide Numbers near Mid-1990s Levels, A.F. TIMES (Apr.

10, 2010, 10:28 AM), http://www.airforcetimes.com/news/2010/04/airforce_suicides_04 lOlOwA At one point, the Air Force suicide rate was about half that of civilian counter- parts. Id. The Navy has had relatively fiat suicide rates—until 2011 when it spiked to 14.5 suicides per 100,000 sailors. See BERMAN ET AL., supra note 72, at 22; Statistics, U.S. NAVY PERSONNEL COMMAND, http://www.public.navy.mil/bupers-npc/support/

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relatively recent increase in suicide rates among military personnel, suicide rates among OEF/OIF veterans have always been higher than that of their civilian counterparts.''^

As illustrated in this section;, the suicide rates among military personnel and veterans vary wildly between the different wars, but this may or may not be as statistically accurate as one might assume. The following section attempts to uncover some of the reasons for the actual and perceived differences among suicide rates of military per- sonnel and veterans of the various conflicts.

III. WHY IRAQ AND AFGHANISTAN SUICIDE RATES ARE DIFFERENT

The problem with the staggering statistic of twenty-two veterans committing suicides per day is that it includes veterans of all wars— fi-om World War II ("WWII") through the Operation Enduring Free- dom and Operation Iraqi Freedom ("OEF/OIF") conflicts. More out- rage should exist not only from the military, but from all Americans— the suicide rate should never reach a level this high. However, it is difficult to resolve the problem without more data regarding which wars produced veterans that may have a higher risk of committing suicide than other wars. For example, if WWII veterans actually make up the majority of the current suicide numbers, the United States Department of Veterans Affairs' ("VA") recent live, online chat- room will not serve as an effective prevention strategy for a generation of veterans in their eighties and nineties who actually need the help more. This strategy would, however, be much more effective for the younger generations returning fi-om OEF/OIF. This is why it is im- perative for the VA, United States Department of Defense ("DoD"), and other agencies and non-governmental organizations ("NGOs") to figure out a way to specifically target and address suicide rates among that population. Thus, it is critical to know not only more details re- lated to veteran and servicemember demographics, but also accurate data that truly reflects the number of suicides among veterans of all wars and conflicts.ö°

suicide_prevention/Pages/Statistics.aspx (last updated Jan. 2, 2013) (noting the rate of suicides has increased fi-om 11.1 suicides per 100,000 persons to 14.5 suicides per 100,000 persons between 2010 and 2011). Marine Corps suicide rates have consistently been above those of their civilian counterparts for the last 10 years. See BERMAN ET AL., supra note 72, at 30.

79. BAGALMAN, supra note72, at 2. 80. One study found that real "suicide totals may be as much as 21% higher than

reported." Braswell & Kushner, supra notE 65, at 1.

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A. Is THE PERCEPTION A REALITY? EXPLANATIONS FOR THE

DIFFERENCES

Unfortunately, it is hard to discern whether the difference in sui- cide rates of veterans of different wars is real or perceived. For exam- ple, active duty suicide rates were shockingly low during the Vietnam conflict, but that war was infamous for producing the "suicidal vet- eran."8i This is effectively the opposite of the current OEF/OIF con- flict—the active duty suicide rates for OEF/OIF are at near-record highs. The suicide rates among the younger veterans appears, based on some studies, to be currently less than that of WWII veterans,^^ yet more than that of Vietnam veterans.^^

There is some validity to the notion that the high suicide rate of OEF/OIF veterans is more perceived than real. The United States is still conducting on-going operations in Afghanistan (and to some ex- tent, limited non-combat operations in Iraq), and more than two mil- lion men and women have served in the military in the last decade.̂ * Moreover, as discussed previously, the suicide rate among active mili- tary personnel is at a thirty-year high. However, it may be that this high rate of veteran suicides is not nearly as prevalent for the younger generations returning from OEF/OIF as it is for the aging populations from the wars of the twentieth century. If that is the case, then public perception of OEF/OIF veterans having a higher smcide risk is a mis- taken generalization, just like the mistaken broad generalizations of Vietnam veterans.

1. Differences in the Wars and Confiicts Themselves

One major difference between the wars in the last century was tempo of combat operations and deplojnnents.®^ For example, the Per- sian Gulf War was far shorter and less costly—speciflcally in terms of

81. See discussion supra Part 11.B. 82. See discussion supra Part II. 83. See Kara Zivin ec al.. Suicide Mortality Among Individuals Receiving Treat-

ment for Depression in the Veterans Affairs Health System: Associations with Patient and Treatment Setting Characteristics, 97 AM. J. PUB. HEALTH 2193, 2193 (2007) ("Un- like tbe general population, older and younger veterans are more prone to suicide tban are middle-aged veterans.").

84. Michelle Tan, 2 Million Troops Have Deployed Since 9/11, MARINE CORPS TIMES (Dec. 18, 2009, 1:20 PM), http://www.marinecorpstimes.com/news/2009/12/ military _deployments_121809w/.

85. I specifically chose not to address the varying societal differences between tbe wars. It is common knowledge tbat there was widespread support for U.S. military personnel during World War II and far less for Vietnam. I believe there is some merit to the argument that public perception of tbe war and our military men and women during the respective conflicts could have a slight role in differing depression, alcohol abuse, and suicide rates.

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the death count—than the Vietnam War.^^ Shorter deployments to the Persian Gulf thus reduced the likelihood of incurring mental health issues, such as post-traumatic stress disorder ("PTSD"), which then decreased the risk of suieide among veterans and military personnel.^''

When comparing these earlier confiicts with those of OEF/OIF, the tempo of combat is vastly different. Through 2009, over forty per- cent of active duty military personnel deployed two or more times, and more than twelve percent of servicemen deployed three or more times.^^ Many studies and government officials blame the high opera- tions tempo and numerous deployments as the culprits of increased instances of PTSD and suicide risk.^^ However, some studies reveal that a more relevant factor to a soldier's increased suicide risk is whether he or she deployed at all—"soldiers who deploy are more likely to die by suicide" than those who do not deploy at all.^° Regard- less, deploying once or multiple times does not appear to be the sole reason for the increase in suicide rates.^^

Those in the National Guard or Reserve military components have also seen a huge increase in deploj^nent (and multiple deploy- ments) since just the Persian Gulf War. Only eighteen percent of those deployed during the Persian Gulf War were from the Reserves, whereas more than forty percent of military personnel deployed to

86. Jane Gross, Some Veterans Fear Reopening Psychic Wounds, N.Y. TIMES, Mar. 20, 1991, at A14, available at www.njftimes.com/1991/03/20/us/some-veterans-fear-re opening-psychic-wounds.html?pagewanted=all&src=pmz.

87. See infra note 89 and accompanying text. 88. Armed Forces Health Surveillance Ctr., U.S. Dep't of Def, Associations Be-

tween Repeated Deployments to OEF/OIF/OND, October 2001-December 2010, and Post-Deployment Illnesses and Injuries, Active Component, U.S. Armed Forces, MED. SURVEILLANCE MONTHLY REP., July 2011, at 2, 3. This report does not include the nu- merous deplojonents required of the Reserve and National Guard components, which have been comparatively much higher th-an in previous conflicts.

89. See, e.g., Lori S. Katz et al.. War Experiences Inventory: Initial Psychometric and Structural Properties, 24 MIL. PSYCHOL. 48, 49 (2012) (citing deplojonent-related stress and "increased op tempo"); Zamorski, supra note 63, at 177 (suggesting that plac- ing limits on duration and spacing of deplojonents may help reduce the risk of suicide); Gordon Lubold, Soldier Rampage Hints ct Stress of Repeated Deployments, CHRISTIAN SCI. MONITOR (May 13, 2009), http://www.csmonitor.com/USA/Military/2009/0513/p02s 01-usmi.html ("Fifteen-month tours and repeated deployments are increasing the rate of suicide . . . and psychological problems, according to Pentagon data.").

90. HARRELL & BERGLASS, supra note 2, at 2. 91. Michael Hoffman, Guard, Reserve Suicide Rate Sees Big Spike, ARMY TIMES

(Jan. 19, 2011, 7:35 PM), http://www.armjtimes.com/news/20H/01/army-guard-reserve- suicide-rate-sees-big-spike-011911w/ ("Blaming only deployments . . . would be incor- rect . . . . Of 112 guardsmen who killed themselves in 2010, more than half had not deployed."). See discussion infra Peirt III.B.1 for some exploration of other possible risk factors, many of which are not iinique to military personnel.

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OEF/OIF were from the Reserves.^^ Given some studies have shown that military personnel mobilized from the Reserves and National Guard have higher risk of mental health issues compared to active duty personnel, which may lead to increased suicide risk,^^ î is not surprising thait the increased use of National Guard and Reserve forces has resulted in a simultaneous rise in suicides—including and especially among these components.̂ '*

2. Medical and Technological Advancements

Advances in medicine, technology, and battlefield protocol over the last fifty-plus years are also prevalent reasons for the differences of suicide rates among military personnel during the various periods of war. One explanation for the recent increase in suicide rates among military personnel and veterans are the medical and technological ad- vances made in the last century. Military personnel are surviving at higher rates than in prior wars because protective gear is far more advanced than in prior wars.^^ However, "[s]oldiers hit in the head or knocked out by [improvised explosive devises ('IED')] blasts often don't display visible wounds."^^ As a result of higher survival rates, these same soldiers are thus at an increased rate of traumatic brain injury ("TBI") and PTSD.»' TBI and PTSD are linked to higher incidents of suicide attempts and increased suicidal behavior.^^ Thus, while the number of military personnel djdng in combat has decreased precip-

92. Dawne S. Vogt et al.. Deployment Stressors and Posttrnumatic Stress Symp- tomatology: Comparing Active Duty and National Guard/Reserva Personnel from Gulf War /, 21 J. TRAUMATIC STRESS 66, 67 (2008). This only represents the OEF/OIF conflict through 2007. In the last few years, eind with the drawdown im Iraq, the number of those deployed and/or mobilized from the Reserves and National Guard has decreased. See Michelle Tan, Army Mulls Future of National Guard, Reserve,. ARMY TIMES (May 23, 2011, 8:03 AM), http://w^vw.annytimes.com/news/2011/05/armj-mulls-guard-reserve- ñiture-052311w/.

93. Vogt et aL, supra note 92, at 67. 94. But, it is iateresting to note that while the raw numbers of suicides within the

National Guard arai Reserves has increased steadily (and skyrocketed in 2010), the rate of suicides has remained somewhat stable, and in fact decreased between 2007 sind 2009. BERMAN ET AL., supra note 72, at 41; Dixon, supra note 72 (providing that the number of suicides of National Guard and Reserve personnel doubled from 2009 to 2010).

95. Katz et aL, supra note 89, at 49. 96. MONTGOMERY, supra note 7, at 189. 97. See id. 98. See Brenner et al., supra note 63, at 257-61.

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itously since the World Wars,^^ the incidence of severe mental health issues has increased because of increased survival rates. ̂ °°

Additionally, changes in medical protocol on the battlefield may have contributed to the difference of suicide rates among military per- sonnel during the various periods of war. During WWII, some army personnel would label any psychological issue as "exhaustion," rather than a more appropriate psychiatric term.^°^ This could have re- sulted in vastly inaccurate accounts of deaths due to suicide or psychi- atric problems. During the Korean and Vietnam Wars, on-site medical personnel provided immediate treatment so military mem- bers could return to combat as soon as possible, thus not addressing any potential serious psychiatric issues until after the servicemen came home.̂ ^^ In fact, the Vietnam War was the first war in which medical personnel administered significant amounts of drugs to those serving in Vietnam to keep the servicemen fighting. This policy staved off the evacuation of some men who were likely too mentally unstable to realistically continue serving in that country. It is possi- ble that the administration of these drugs resulted in artificial sup- pression of suicide ideation among actively serving military personnel, and once they returned home, they no longer received the medication that prevented suicide ideation. ̂ °3

In today's OEF/OIF conflicts, the ethical issue of prescribing psy- chiatric drugs to soldiers on the battlefield in order to keep them in combat operations, or to return them quickly to the conflict, still ex- ists. More drugs are being prescribed to military personnel both abroad and once they return home after being diagnosed with PTSD or similar mental disorders. ̂ °* Some military psychiatrists and medi-

99. See SANCHEZ, supra note 39, at 449 (reporting that 30% of wounded soldiers died in World War II, 24% of wounded died in the Vietnam and Persian Gulf Wars, and yet only 10% of wounded have died in the OEF/OIF conflicts "thanks to medical improvements").

100. See DISABLED AM. VETERANS, supra note 47, at 4 (explaining "psychiatric casu- alties" during World War II had increased 300% fi'om World War I); SANCHEZ, supra note 39, at 449 ("Men ana women with terrible and formidable injuries are being saved on a scale never seen before eind will carry psychological scars that we haven't even begun to comprehend."); see also Katz et al., supra note 89, at 49 (finding that "Vietnam veterEins who sustained an injury during combat were at increased risk for PTSD than those who did not"). However, it is worth noting that the estimates of military veterans with PTSD for Korean War veterans are equal to that of OEF/OIF veterans. MONTGOM- ERY, supra note 7, at 145, 189.

101. DISABLED AM. VETERANS, supra note 47, at 4. 102. Id. at 4-5. 103. Id. at 9 ("[T]here was widespread use of cannabis b u t . . . it had created almost

no psychiatric problems. Quite to the contrsiry, it served its own medicinal purpose as a buffer against the stresses of the Vietnam experience, submerging and delaying symptoms.").

104. See HARRELL & BERGLASS, supra note 2, at 7.

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cal personnel have counseled their colleagues in the Middle East to maintain large quantities of these newer prescription drugs in order to "conserve the fighting strength."^°^ Unfortunately, even the diag- nosis of such disorders, and being heavily medicated upon returning from combat, will not prevent a soldier's redeployment to the con- flicts. ^°^ Redeployment can further compound a servicemember's al- ready-fragile state of mind if sent back into combat without fully recovering from the physical and mental wounds of the first deployment.

Finally, medical professionals, and thus government agencies im- plementing medical policy, treat mental health issues differently to- day as compared to those in the 20th century.̂ *''' While the symptoms of PTSD and related psychiatric issues have been recognized since WWI, differences in the characterization of PTSD has affected the way the VA and DoD have treated military personnel and veterans over the years. ̂ °^ Indeed, it was suggested that when a PTSD-like mental health diagnosis was deleted from a popular American Psychiatric As- sociation medical treatise in 1968, the medical organization did so to "reduce the financial liability of the VA following the Vietnam War."^°^ The removal of this provision may have had two deleterious results in suicide rates among Korean and Vietnam War veterans. First was the inability of veterans to receive VA benefits and treat- ment for PTSD-like psychiatric health issues, thereby exacerbating the risk of suicide, and possibly attributing to the rise of suicide rates among Vietnam veterans in the five years after servicemen left mili- tary service.^^° Second, because these psychiatric issues were not nec- essarily reported among agencies, many of which directly adopted the medical treatise's medical definitions via regulations, the risk factors associated witïi suicide may not have been accurately tracked, and

105. Catherine L. Annas & George L. Annas, Enhancing the Fighting Force: Medical Research on American Soldiers, 25 J. CONTEMP. HEALTH L. & POL'Y 283, 304 (2009). Newer psychotropic medications, especially "selective serotonin-reuptake inhibitors (SSRIs)," are used for anxiety disorders and depressive disorders. Id.

106. This statement is based on my personal observations and conversations I had with a particular seldier, who was diagnosed with PTSD after a tour in the Middle East. Despite years of psychological counseling and still receiving disability benefits for PTSD, he was told- he would re-deploy to Afghanistan in spring 2012.

107. See Gross,, supra note 86 ("[I]n the intervening years between Vietnam and the gulf war post-traumatic stress disorder has been recognized as a psychiatric illness, thus making it likely the latest victims will be diagnosed early and will get the best care available.").

108. See NANCY C. ANDREASEN ET AL.. INST, OF MED. & NAT'L RESEARCH COUNCIL OF THE NAT'L AC.'UJS., PTSD COMPENSATION AND MILITARY SERVICE 46, 79 (2007), available at http://www.iom.ed\j/Reports/2007/PTSD-Compensation-and-Military-Service.aspx.

109. Id. at 46. 110. See supra Part U.C.; see also Pollock et al., supra note 49, at 774.

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thus not adequately addressed within the VA and DoD.̂ ^̂ As dis- cussed more thoroughly below, not knowing or tracking the risk fac- tors for suicide among military personnel and veterans only further hinders the agency and military officials from preventing suicide. By updating the medical treatise a decade later, the two problems of properly diagnosing PTSD and its related psychiatric health issues could largely be resolved.̂ ^^

B. REPORTING ACCURACY AND ITS IMPORTANCE IN PREVENTING SUICIDES

The DoD currently tracks all completed suicides among active duty and Reserve/National Guard personnel within the Armed Forces.̂ ^3 While the DoD has access to military personnel and health records, including relevant psychiatric documentation,^^* and thus the ability to draw from these records to build a clearer picture of why military personnel commit suicide, the DoD still wants more data.̂ ^^ Indeed, the DoD admitted in mid-2010 that they simply did not have procedures in place to standardize suicide investigations to get all the data necessary to create the perfect weapon against suicide.̂ ^^ Fur- ther, in exploring a historical analysis of veteran suicide rates among all wars, there is no "one-stop-shop" to find relevant data of those that committed suicide.

Individual state health agencies, not the DoD or VA,^'^'^ are prima- rily and traditionally responsible for tracking the cause of death and other relevant factors pertaining to decedent characteristics, such as

111. For example, instead of attributing suicide risk factors to PTSD, tbe agencies may bave attributed suicide risk instead witb depression, personality disorder, or other- wise inaccurate mental health diagnoses, which may have only been partial reasons for suicide ideation.

112. See generally, e.g., Scott Simonsoci, Note, Back From War—A Battle for Bene- fits: Reforming VA's Disability Ratings Sy.item for Veterans with Post-Traumatic Stress Disorder, 50 ARIZ. L. REV. 1177, 1182 (2008).

113. Pia Malbran, Veteran Suicides: How We Got the Numbers, CBS NEWS (Feb. 11, 2009, 3:53 PM), http://www.cbsnews.com'8301-500690_162-3498625.html?tag=content Main;contentBody.

114. However, unit commanders have very limited access to this type of data of their troops. There have been recent developments within the Army itself to encourage mental health professionals to warn military leaders when one of tbeir troops is at "high risk" of suicide. HARRELL & BERGLASS, supra note 2, at 7-8.

115. DoD: Suicide Data Improving but More Needed, MIL. TIMES (Sept. 22, 2011, 1:57 PM), http://militarytimes.com/news/2011/09/ap-suicide-data-improving-but-more- needed-092211/.

116. Andrew Tilgbman, Report Urges New Office for Suicide Prevention, MIL. TIMES (Aug. 24, 2010, 5:20 PM), http://www.militarytimes.com/news/2010/08/miltary-taskforce -DefenseDepartment-suicide-082410w/.

117. Suicide Rates Soar Among U.S. Veterans, GOOGLE NEWS (NOV. 11, 2010), http:// www.google.com/hostednews/afp/article/ALeqM5ip7r lSIPog5ds_RyeomhhRTvdZxA.

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sex, residence, and veteran status.^^^ While the Centers for Disease Control ("CDC") attempts to track suicides in the U.S. population, they depend on reports from the individual state health agencies for pertinent veteran or miliarty-related data, usually to no prevail.^^^ Many states do not provide this data out of privacy concerns.̂ ^o ¡n fact, only about a third of U.S. states provides suicide-related cause of death data to the CDC, as well as provide data concerning the vet- eran-status of decedents at the time of death. ̂ ^̂ However, this data is often years old and extrapolated to the remaining states to determine the "nationwide" suicide rate among veterans.^^^ Thus, there is cur- rently no way to know the true number of how memv veterans commit suicide.

So why is .accurate reporting data so important? What would it do to know exactly how many veterans commit suicide each year, which wars they fought in (or, alternatively, if they are veterans of peace- time eras), or their mental health history? There are three major rea- sons why accurate data is not just necessary, but critical, to help prevent suicides in the military and among veterans: to identify sui- cide risk and protective factors to implement effective screening meth- ods; to create targeted suicide prevention programs; and to validate implemented suicide prevention programs and mental health services.

1. Suicide Risk and Protective Factors

While there have been some studies revealing a number of suicide risk factors for military personnel, these risk factors are overbroad generalizations that may not correlate with attempting or committing suicide.̂ 23 Additionally, many of the risk factors identified are just as relevant in civilian suicide investigations: they are Qot unique to mili- tary personnel or veterans. Examples of these joint civilian-military suicide risk factors include prior suicide attempts,, mental and sub- stance-use disorders (including depression, PTSD, and anxiety), and

118. Malbran, .supra note 113. 119. Id. 120. In CBS's 2008 investigation into veteran suicide rates, they noted that a num-

ber of states were extremely hesiteint to give over some data in Dase it could be deter- mined, using adcStional sources, who exactly those veterans were that committed suicide. Id.

121. SuNDARAEAMAN ET AL., supra note 32, at 2-3; Patricia Kime, VA Aims to Get Better Data on Vet Suicide Rates, NAVY TIMES (Feb. 28, 2012, 5:56 PM), http:// www.navytimes.ccm/news/2012/02/military-va-aims-to-get-better-data-on-vet-suicide- rates-022812w/.

122. HARRELL & BERGLASS, supra note 2, at 9. 123. See generally Rajeev Ramchand et al.. The War Within: .Preventing Suicide in

the U.S. Military, 1 RAND HEALTH Q. 29-37 (2011), available a: http://www.rand.org/ pubs/periodicals/health-quarterly/issues/viynl/02.html.

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prior history of physical or sexual abuse. ̂ 4̂ -whue some risk factors, such as PTSD, may be more prevalent in military personnel and veter- ans, given their exposure to psychologically traumatic events far more often than civilians, these factors are still equally relevant in deter- mining suicide risk among civilians and military personnel/veterans alike. Therefore, more thorough and accurate data of military person- nel and veterans who commit suicide could potentially uncover suicide risk factors that are unique to them.

This is not to say that the risk factors already identified are not useful; quite to the contrary, they can be very important in suicide prevention screenings. These risk factors can also prove helpful to mental health professionals. After initial mental health screenings for disorders like depression or PTSD, these risk factors could help determine what additional screening the servicemember or veteran requires, allowing that servicemember or veteran to be placed in a program specifically targeting his or her individual needs. ̂ ^̂ How- ever, aside from higher rates of PTSD and TBI among military person- nel verses their civilian counterparts, many of the suicides occurring in the military are from those who have never deployed. Thus, there is something more than just the joint civilian/military suicide risk fac- tors at play: there is something causing the suicide rates to increase within the military and among veterans, but not civilians. Without additional studies to uncover what that "something" is, the mystery of increased suicide rates among military personnel and veterans will never be solved.

2. Targeted Suicide Prevention Programs

There is no "one-size-fits-all" suicide prevention program. ^̂ ^ These programs must be tailored to address the problems with which servicemembers and veterans struggle. ̂ '̂̂ Using the newly-found risk factors, government agencies and NGOs can tailor suicide prevention programs to specific groups of veterans, such as a program specifically geared towards preventing suicide in soldiers with TBI, those military members and veterans with substance-use problems, or veterans who experienced sexual trauma while in service.

But these newly-found risk factors are not the only data needed in creating targeted programs. Differences in the type of service of mili- tary members could potentially lead to different needs from a suicide

124. See generally id. 125. See Chad M. Lemaire & David P. Graham, Factors Associated with Suicidal

Ideation in OEF/OIF Veterans, 130 J. AFFECTIVE DISORDERS 231, 232 (2011). 126. Despite the fact that many of the Army's suicide prevention programs were

described as "one-size-fits-all." Hoffman, supra note 91. 127. See Tilghman, supra note 116.

414 CREIGHTON LAW REVIEW [Vol. 46

prevention program. For example, suicide rates among Reservists and National Guardsmen are increasing even though active duty rates are stabilizing (or at least, not increasing at a statistically significant rate). This type of knowledge should be exploited to create an out- reach program geared towards these specific servicemembers, which, based on the different nature of their military duties, would look quite different from a program geared towards active duty components.̂ ^^ One particular difference between the two components is that Na- tional Guardsmen and Reservists are activated from civilian life, and activation can sometimes be initiated unexpectedly. Additionally, dif- ferent military and veteran benefits regulations govern these ser- vicemembers. A suicide prevention program geared specifically towards Reservists and National Guardsmen would thus need to be tailored to their specific needs and chaUenges as compared to active duty servicemembers.

Other differences that may require a variety of suicide outreach programs are the age of and war period served by the veteran. If sui- cide rates among younger veterans differ compared to older genera- tions (regardless of the war era they served during), outreach programs should focus on the generational differences: suicide hot- lines and chatrooms would be very effective for younger generations and younger soldiers, but not nearly as much for WWII veterans or older veterans.

3. Validation of Suicide Prevention Programs

Finally, the third major reason to maintain and manage an exten- sive data collection on suicides in the military and among veterans is to track progress and validate suicide prevention programs. Organi- zations have initiated a number of programs in the last few years since the rise cf suicide rates drew public attention, and while the U.S. Army stated that niany of these programs and initiatives were "good ideas," little evidence existed to determine whether they were actually reducing suicide rates or not.̂ 29 Additionallj', the VA and DoD can use such information to better tailor suicide ideation screenings and further understand the relationship between military/VA mental health care by validating suicide prevention efforts.̂ ^°

128. See Hoffman, supra note 91. 129. Dan Elliot, Study to Review Suicide Prevention Programs, MIL. TIMES (Oct. 27,

2010, 1:28 PM), http://www.militarytimes.com/news/2010/10/ap-military-study-to- review-suicide-prevention-102710/.

130. See SUNI>ARARAMAN ET AL., supra note 32, at 10.

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C. RECENT EFFORTS TO INCREASE AND EFFECTIVELY USE METRICS

While there is very scant data, available to the VA and DoD to help resolve these three major issues, both agencies have completed some work to improve not only the amount of data, but the quality as well. For example, the VA has recently forged agreements with forty-nine states in order to obtain more da"a on veterans who commit suicide; the VA hopes to finalize a commitment from the last holdout state of Colorado as soon as possible.^^l The VA continues to collect suicide- related data by veterans currently using VA medical health care (spe- cifically the hospital and medical facilities), but it does not have access to such data of veterans who are not enrolled in the VA health care system, or who do not use the VA health facihties.^^a The CDC does receive some of this information firom veterans not enrolled in the VA system, but, as previously mentioned, only from about one-third of the states.133 Thus, by expanding the net to cover all veterans, whether or not enrolled with the VA health care system, and to cover all states, not just a select few that choose to report such data to the CDC, the VA will finally have better access to the data it needs to address the in- creasing suicide rates of veterans.^34 Until the VA and each state be- gins this joint venture, the VA is left trjning to link its records to those of the CDC and DoD database via social security numbers. ̂ ^̂ This is a cumbersome task that still leaves the VA without a complete picture of veteran suicides among all states.^^^

The VA is not alone, however, in attempting to increase its access to more data. In late 2010, the DoD launched a three-year program to "study multiple aspects of suicide [and] look at the work of other stud- ies," the results of which will be put in a large database immediately available for policy makers.^^'^ The database will not consist of infor- mation related to characteristics of those that commit or attempt sui- cide, like the joint VA-CDC program, but rather it will consist of

131. Kime, supra note 121. Colorado i.3 one of the 18 states that currently provide the CDC with information regarding whether a victim of suicide was a veteran or not. HARRELL & BERGLASS, supra note 2, at 12 n.48.

132. SuNDARARAMAN ET AL., supra notft 32, at 3 ("However, because only about one- third of veterans receive their health care fi]om the VA, using VA health systems data for linkage would not capture the complete ejsperience of suicide among veterans.").

133. Id. at 2-3; Kime, supra note 121. 134. Some efforts have been made by the VA to directly access the CDC's data. See

SuNDARARAMAN ET AL., supra note 32, at 3. The information, however, is still limited to those 18 states that submit data to the CDC, and it often does not allow for a complete picture of veteran characteristics that would be necessary to create individualized or tailored suicide prevention programs. See id.

135. HARRELL & BERGLASS, supra note 2, at 9. 136. SuNDARARAMAN ET AL., supra note 32, at 3. 137. Elliot, supra note 129.

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policies and studies conducted to prevent suicide.^^* It is not a perfect system, but it is a first step in the right direction to validating the implemented programs that the DoD and VA have created in the last few years.

IV. IMPLEMENTED PROGRAMS

There are a number of suicide prevention programs implemented as a result of the increasing number and rates of suicides within the military and among veterans. The United States Department of De- fense ("DoD") and United States Department of Veterans Affairs ("VA") have been the front-runners in developing and implementing such programs, but they are not alone, and many of the other pro- grams have reported great success—despite some setbacks. This sec- tion provides a brief overview of some of the most successful and well- known suicide prevention programs implemented by government and non-governmental organizations ("NGOs") alike, as well as some of the. gaps that still need to be addressed.

A. GOVERNMENT SPONSORED PROGRAMS

The DoD and VA are the two primary government agencies that have tried to develop the most comprehensive suicide prevention pro- grams within the federal government. Other federal agencies, such as the Department of Health and Human Services as well as the Centers for Disease Control ("CDC"), have either provided support to the DoD and VA or have implemented additional services: but these agencies are primarily, if not solely, used only by veterans and not active duty military personnel. ̂ ^

1. Transitional Training—From Combat back to Non-Combat and Civilian Life

Both the DoD and VA have created transitional training programs for military personnel that leave the service. These organizations pro- vide training to help servicemembers become aware of the various benefits they are entitled to (primarily from the VA, but can include benefits from the DoD as well), offer financial advice, and provide em-

138. See id. 139. Because active duty personnel receive all their health care through the DoD for

free as a benefit of being in tbe armed forces, there is little need for these otber non-DoD sponsored programs to target military personnel. This is not the case, however, for the millions of veterans who do not receive their healthcare from the VA. Many veterans simply do not quEilify for free healthcare from the VA, and thus are more likely to obtain health care from private health care providers or via federal/state health care programs such as Medicare.

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ployment assistance. 1"*° Many of "hese programs are geared towards helping military personnel return to civilian life, but some of the pro- grams are actually designed to help military personnel returning fi'om combat to resume a non-combat lifestyle while still serving in the mili- tary. The former type of program can be molded to provide long-term solutions to help reduce suicide rates among veterans by teaching sep- arating military personnel about warning signs of post-traumatic stress disorder ("PTSD"), what VA benefits they are entitled to, and other suicide prevention information. The latter type of program should be used as a short-term solution to reduce the suicide rates among active-duty personnel who stay in the military for more than one combat tour.

One particular problem with transitional training programs is that traditionally only those in the active duty components were able to use the programs, and thus, for the most part. Reserve and Na- tional Guard personnel who returned to civilian life after being acti- vated (or mobilized) for a specific time period were excluded.̂ ^^ Given the high number of Reserve and National Guard miUtary personnel that deployed to Operation Enduring Freedom and Operation Iraqi Freedom ("OEF/OIF"), it was crucial that these transitional programs were made available to these individuals as well.̂ ^^ Thankfully this recently changed, and Reserve and National Guard components began receiving the same transition training as their active duty

Other problems with the effectiveness of these transitional train- ing programs has been that the information provided during these programs is often either confusing for servicemembers,i"*^ inapplica- ble to their situation, ̂ '̂ ^ or servicemembers simply do not pay as much attention during these training sessions as necessary to fully glean

140. For general information regarding the DoD's current, overarching transitional training, see TURBO TAP, http://turhotap.org/ (last visited Jan. 13, 2013).

141. In the last decade, a significant number of National Guard and Reserve mem- bers were activated to serve tours in OEF/OIF. See supra Part III.A.l.

142. See supra Part III.A.l. 143. U.S. DEP'T OF DEF., TRANSITION GUIDE: RESERVE COMPONENT 1, available at

http://www.turbotap.org/export/sites/defauit/transition/resources/PDF/Reserve _Component_Transition_Guide.pdf.

144. Amy N. Fairweather, Compromisai Care: The Limited Availability and Ques- tionable Quality of Health Care for Recent Veterans, HUM. RTS., Spring 2008, at 2, 7.

145. For example, a servicemember who is or believes that he or she is completely healthy and thus has no current foreseeable reason to apply for VA disability benefits will not pay particular attention during a portion of the training that may include how to file for VA disability benefits, and thus may "zone out" (so to speak) during much of the training, even if subsequent information is not inapplicable to the individual ser- vicemember. Another example may be the servicemember who is single with no depen- dents and required to sit through portioras of training that deal with family-related

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the relevant and important information. These problems seem to be most prevalent among younger military personnel.^^^ The transi- tional training programs' significance needs to be emphasized within the military—specifically among non-commissioned officers and mili- tary commanders—so that younger servicemembers get the most out of these sessions.

Where the government has failed to provide adequate transitional assistance for members leaving the military, non-profit veteran orga- nizations ("non-profits") have tried to fill in the gap. One example is the U.S. Military Endowment, whose mission is "to provide resources to our brave men and women, so that they may successfully transition from military to civilian life."^ '̂' Many similar programs have been created by other Veteran Service Organizations ("VSOs") and non- profits. ̂ ^̂

Other private organizations have also tried to create programs to help rehabilitate military members. In an effort to increase veterans' success rates in the workplace, some private employers have devel- oped initiatives within their company or institution. ̂ ^̂ Many compa- nies actively recruit and hire veterans and focus on providing new veteran employees mentoring programs such as Pacific Gas and Elec- tric Company's Employee Resource Group, and DuPont's Veteran's Network. ̂ °̂ However, even companies that have such initiatives in place are still hesitant to hire veterans out of concern with recent trends of PTSO among returning veterans from OEF/OIF.̂ ^^ This is despite the numerous benefits to hiring veterans, ̂ ^̂ and laws preventing discriminatory hiring of veterans diagnosed with PTSD and other mental health problems. ̂ ^̂ Nearly half of employers polled

146. This observation is based on conversations I have had with a number of veter- ans and military personnel—both enlisted and officer alike.

147. U.S. Miu ENDOWMENT, http://www.usmilitaryendowment.org/ (last visited Jan. 13, 2013).

148. See, e.g.. Heroes to Hometown, AM. LEGION, http://www.legion.org/heroes (last visited Jan. 13, 2013); Transitioning to Civilian Life, VETERANS FOREIGN WARS, http:// www.vfw.0rg/Ass:stance/Transitioning/ (last visited Jan. 13, 2013).

149. MARGARET C. HARRELL & NANCY BERGLASS, CTR. FOR A NEW AM. SEC, EMPLOY- ING AMERICA'S VETERANS: PERSPECTIVES FROM BUSINESSES 28 (2012), available at http://www.cnas.org/files/documents/publications/CNAS_EmployingAmericasVeterans_ HarrellBerglass.pdf.

150. Commitments, WHITE HOUSE, http://www.whitehouse.gov.'joiningforces/commit ments (last visited Sept. 4, 2012).

151. HARRELL & BERGLASS, supra note 149, at 24. As I discuss briefly in the next section, another problem companies have in hiring veterans is the existence of too many veteran-hiring programs and initiatives. Id. at 28.

152. See generally id. at 6, 17-20. 153. See Veterans and the Americans with Disabilities Act (ADA): A Guide for Em-

ployers, EQUAL EMP. OPPORTUNITY COMM'N, http://www.eeoc.gov/eeoc/publications/ada_ veterans_employers.cfm (last visited Sept. 4, 2012).

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by the Society for Human Resource Management cited PTSD and re- lated mental health issues as a challenge of hiring military veter- ans. ̂ ^̂ Disturbingly, one way that an employer's perception of veterans has been tainted is via the media, ̂ ^̂ whose recent coverage is reminiscent of the media-hyped depression problems alleged of Viet- nam War veterans.^^^ Continued unemployment for veterans may only exacerbate their mental health problems, and hopelessness in employment may increase risk of suicide. ̂ '̂̂

After the significant increase in suicide rates from 2008 to 2010, the DoD itself has begun adding new programs, or components to al- ready existing programs, to help ease deployed military personnel re- turning from combat. One such program, coined the "decompression chamber,"^^^ requires units returning from combat to remain on base for ninety days before being allov/ed to return to civilian life.̂ ^^

The DoD instituted this program for a Marine Corps unit that in- curred an unusually high death toll in Afghanistan in 2010, in hopes of helping the unit ease back into a non-combat mentality and thus reduce the incidence of mental trauma. i^° During the ninety-day "de- compression period," the Marines held memorial services for fallen comrades and, most significantly, had the opportunity to talk about their experiences in OEF with each other, î ^ Prior to this program. Marines would often "go their separate ways" with no chance to grap- ple with the initial shock of returning from war with the men and wo- men they served with in the Middle East.^^^ Military officials are waiting to announce it as a success because the program is so novel, but many who have deployed to OEF and OIF have stated their sup- port and hope for the programs continuance.^^^ The DoD and VA will

154. SOC'Y FOR HUMAN RES. MGMT., EMPLOYING MILITARY PERSONNEL AND RECRUIT- ING VETERANS 10 (2010), available at http://www.shrm.org/research/survejffindings/ documents/10-0531%20military%20progrsm%20report_fiil.pdf.

155. HARRELL & BERGLASS, supra note 149, at 24. 156. See discussion supra Part II.B. 157. See Laurence Hammack, Suicidal Veteran's Case Pits Promise, Federal Law,

ROANOKE TIMES (Feb. 12, ' 2012), http:.7www.roanoke.com/news/roanoke/wb/304757; Joshua Norman, After War, Vets Fight for Jobs at Home, CBS NEWS (Sept. 4, 2012, 5:04 PM), http://www.cbsnews.com/8301-201_L62-57505057/after-war-vets-fight-for-jobs-at- home/.

158. Julie Watson, Wars' Lessons Applied to Ease Combat Stress, NAVY TIMES (Jan. 19, 2012, 7:18 AM), http://www.nayytimes.com/news/2012/01/ap-wars-lessons-applied- to-ease-combat-stress-011912/ (providing the statements of psychologist Eric Zillmer, who compared combat with "diving to the depths of the ocean and when you have to go back to the surface you have to decompress . . . It's almost a biological process").

159. Id. This type of required on-baee presence program is actually typical for sailors and marines who return fi-om ship duty. Id.

160. Id. 161. Id. 162. Id. 163. See¿d.

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be able to determine this program's effectiveness on reducing suicide rates among veterans and military personnel by conducting long-term follow-up checks on the Marines required to complete this program. Nonetheless, the Marine Corps has since required a "decompression period" for all its units that return from OEF. Its apparent, yet unoffi- cially announced, success is a clear indication that the program has worked for the Marine Corps, and thus, is- a program that should be implemented among all returning units in all military branches.^^*

2. Programs and Initiatives Within the VA

The VA has responded to the rise of suicides among veterans by creating a number of programs to help stave oif additional suicide at- tempts, including a national suicide prevention hotline, a confidential and anonymous online chat room, and even a "smartphone applica- tion."^^^ Some critics, however, believe that there are actually too many suicide-prevention programs to make the overall goal success- ful. ^̂ ^ Since the inception of many of these programs, the number of active duty suiJcides has decreased slightly, ̂ '̂̂ but there is no evidence that the number of veterans committing suicide has similarly de- creased. Much of the data used by agencies in determining suicide rates among veterans, as discussed above in Part II, is sometimes years old, and thus there simply is not recent-enough data to deter- mine whether :;he programs have had a statistically significant impact in reducing suicide rates among veterans. The VA must perform stud- ies on the recently instituted programs to determine whether they will be effective or not in both the short- and long-term.

Nonetheless, the VA is hailed for the numerous panels, commis- sions, initiatives, and programs it has created in the last five years, as well as the tangible numbers of lives the VA has saved through these programs. But these efforts were not without a slow start. For exam- ple, before 2008, the VA had a policy of not televising advertisements for VA benefits or services.̂ ^^ Thus, the VA was effectively barred

164. This would not be very difficult, as the Navy requires this for sailors and Marines returning fi'om ship duty. See id. Thus, the other branches could easily model these "decompression period" programs after those already implemented by the Navy and Marine Corps.

165. NY. Grocp Unveils App to Aid Suicidal Veterans, WALL ST. J. (Feb. 27, 2012, 12:28 PM), http://Bnline.wsj.com/article/APbdclf410694f4d88aa8d42d70f3celc3.html.

166. HARRELL & BERGLASS, supra note 2, at 8. 167. See suprc Part ILD. It should be noted that, as new numbers come in, the

suicide rates have fiuctuated among EIII branches of the military in the last few years and seem to have stabilized more than "decreased," at least in any statistically mean- ingful way.

168. Examinirtg the Progress of Suicide Prevention Outreach Efforts at the U.S. De- partment of Veterans Affairs: Hearing Before the Subcomm. on Oversight & Investiga- tions of the H. Comm. on Veterans Affairs, 111th Cong. 2 (2010) [hereinafter Examining

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from using one of the easiest modes of advertising services; services that could have potentially helped prevent suicides if only the VA could have reached out to veterans to get them the help they needed. This policy was reversed in 2008, in part due to pressure from the legislative branch after receiving reports of the increased suicide rates among veterans.^^^ Calls from the Washington, D.C.-metro area to the VA's suicide prevention hotline doubled during the time period public service announcements were present on buses and in subway stations in Washington, D.C.i''° Yet despite the success of the adver- tising campaign, the VA ceased the bulk of its advertising in 2010.^'^'^ For these programs to continue preventing suicide among veterans, effective outreach and advertising must persist. ̂ '̂ ^

One incredibly successful program the VA implemented within the last five years is the Veterans Crisis Line. '̂''̂ Instituted in July 2007, the Veterans Crisis Line is staffed by a number of suicide and crisis prevention counselors who take calls from veterans, friends of veterans, and concerned family members of veterans twenty-four hours a day, 365 days a year. The center has answered more than half a million calls and claims to have saved more than 23,000 lives. '̂''* The expanded crisis center now includes a confidential and anony- mous chat room dubbed "Veterans Chat," which allows veterans to chat with VA-trained counselors. Veterans Chat, however, is not meant as a replacement for the Veterans Crisis Line: where neces- sary, the Veterans Chat counselor will attempt to transfer the veteran

the Progress of Suicide Prevention Hearing] (statement of Rep. Mitchell, Chairman, Subcomm. on Oversight & Investigations), available at http://www.gpo.gov/fdsys/pkg/ CHRG-lllhhrg58058/pdf/CHRG-lllhbrg58058.pdf

169. See¿d. 170. Ryan Steinbacb, Lives on the Liree, VANGUARD, May-June 2009, at 6, 8, availa-

ble at http://www.va.gov/opa/publications/vanguard/09mayjuneVG.pdf. 171. Examining the Progress of Suicide Prevention Hearing, supra note 168. Tbank-

fully, new public service announcements were reinitiated in mid-2011. Press Release, Dep't of Veterans Affairs, VA Launches New PSA on Suicide Prevention for Veterans (Mar. 15, 2011) (on file witb author), available at http://www.va.gov/opa/pressrel/ pressrelease.cfm?id=2071.

172. The VA admits that advertising and outreach programs can produce tangible suicide prevention results: "As of April 2010, the VA had reported nearly 7,000 rescues of actively suicidal veterans which were attributed to seeing ads, PSAs (public service announcements), or promotional products." Examining the Progress of Suicide Preven- tion Hearing, supra note 168. The VA also noticed an increase in referrals to VA mental health services. Id.

173. For the website tbat advertises and provides a great deal of information re- garding the hotline and other services, see About the Veterans Crisis Line, supra note 4.

174. Id.

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or family member to the Veterans Crisis Line to speak with someone via the phone. '̂'̂

While the VA is making significant improvements in reaching ser- vicemembers and veterans alike, there are still major problems that need to be addressed. First, one major shortfall with many of the sui- cide prevention programs, especially those like the confidential Veter- ans Chat and other technology-based outreach campaigns, is that they still do not reach specific target audiences of veterans.^''^ Online- based outreach programs (for example, those on Twitter, Facebook, or the recent smartphone application)^'''' and the Veterans Chat are no doubt effective methods for reaching the younger generations of veter- ans and military personnel returning from OEF/OIF confiicts. But for older generatians, specifically veterans of WWII and the Korean War, and for homeless veterans, who have little if any access to online ser- vices, these outreach and awareness methods are just not as effective as compared to younger veterans. This is especially true in light of the current veteran demographics: fifty percent cf veterans are over the age of sixty, and twenty percent of veterans are over the age of sev- enty. ̂ ''̂ These online services serve a purpose and they should not cease, but the VA needs to ensure they create a comprehensive collec- tion of outreach methods that can reach all veterans, of all ages, sexes, generations, and wars. Examples of practical outreach methods for homeless veterans, especially those in major metropolitan areas, are: public service announcements that are targeted during specific televi- sion segments; other forms of public advertising, such as the recent ads placed in and on public transportation; ̂ ''̂ or those ads in non-VA hospitals, clinics, and health centers.

175. Press Release, Dep't of Veterans Affairs, VA's Suicide Prevention Program Adds Chat Servies (Aug. 31, 2009) (on file with author), available at http://www.va.gov/ opa/pressrel/pressrelease.cfin?id=1757.

176. The VA Chief of Staff, John R. Gingrich, stated that most veterans who are suicidal do not call tHe Veterans Crisis Hotline, and therefore more must be done to identify, and this target, those most at risk. Meeting Minutes, Advisory Comm. on Women Veterans, Dep't of Veterans Affairs 3 (Mar. 29-30, 2011) (on file with author), available at http://www.va.gov/WOMENVET/docs/ACWVMarch2011Minutes.pdf; see also Part III.B.

177. DoD, VA Conference Focuses on Military Suicides, MIL. TIMES (Mar. 15, 2011, 3:03 PM), http://www.militarytimes.com/news/2011/03/ap-conference-focuses-on- military-suicides-031511/.

178. See NAT^L CTR. FOR VETERANS ANALYSIS & STATISTICS, VETERAN POPULATION TABLE: THE NATHON, AGE/GENDER (2010), available at http3://www.va.gov/vetdata/ Veteran_Populatk)n.asp.

179. See Bill Outlaw, Winning the War Within, VANGUARD, Sept.-Oct. 2008, at 10, 11, available at http://www.va.gov/opa/publicationsAfanguard/08sepoctVG.pdf (detailing the VA's public service announcement campaign in Washington, D.C, which involved placing ads on buses and in metro (subway) stations).

2013] "TO HAVE NO YESTERDAY' 423

Second, and most significantly, one change that must occur is clearing the massive claims backlog at the VA^^" and improving ac- cess-to-care timeliness for veterans. The VA is currently experiencing serious inefficiencies with respect to a colossal backlog of veteran disa- bility claims that are currently pending: as of the summer of 2012, there were 911,000 veterans waiting for approval to receive disability compensation or access to VA healthcare.^^^ Two-thirds of these claims took four months or longer to process,^^^ and the average length of time to process a claim has been six months.^^^ Addition- ally, many veterans must wait weeks or months to actually see a doc- tor, and they often have to wait longer to see a mental health specialist. ̂ "̂̂ Thankfully, when veterans and military personnel can- not get access to care from government agencies, they can have some solace in finding informal programs from VSOs and community-led organizations.

B. COMMUNITY AND V S O SPONSORED EFFORTS: HELPING VETERANS AT A LOCAL LEVEL

Where the VA and DoD fail to provide veterans the help they need, many non-profits and VSOs attempt to fill in the gaps. Many of these organizations provide transitional training, whereas others sim- ply provide a safe place for veterans of all wars to come together to discuss their experiences and to work through them. This latter ef- fort—veterans helping veterans, so to speak—is novel and somewhat controversial, ̂ ^̂ but evidence shows this type of informal counseling

180. I merely state that this is a massive problem for the VA, without going into the details of how to resolve this specific problem. I recommend, for the curious reader who would like to know more about this specific issue of the claims backlog, to review the 2011 United States Court of Appeals for ihe Ninth Circuit panel opinion. Veterans for Common Sense v. Shinseki, 644 F.3d 845, 850 (9th Cir. 2011), reh'g en bane granted, 663 F.3d 1033 (9th Cir. 2011), vacated, 678 F.3d 1013 (9th Cir. 2012); see also Michael Ser- ota & Michelle Singer, Veterans' Benefits and Due Process, 90 NEB. L. REV. 388 (2011).

181. Rick Maze, VA Promises Results en Claims Process Fixes,' NAVY TIMES (July 11, 2012, 1:00 PM), http://www.navjrtimes.com/news/2012/07/military-veterans-affairs- promises-results-claim-process-fixes-0711i2w/.

182. Id. 183. Why the VA Frustrates Veterans, CBS NEWS (Jan. 3, 2010 11:10 PM), http://

www.cbsnews.com/2100-18560_162-6045148.html. There is some indication that this number will go down over the next two to three years, such that by 2015, no veteran will have to wait more than four months for his or her claim to be processed. Maze, supra note 181.

184. See VA Mental Health Care: Addressing Wait Times and Access to Care: Hear- ing Before the S. Comm. on Veterans Affairs, 112th Cong. 7 (2011) (statement of Michelle Washington, Coordinator, VA Meid. Ctr., Wilmington, Del.), available at http:// www.gpo.gov/fdsys/pkg/CHRG-112shrg72248/pdi/CHRG-112shrg72248.pdf; id. at 30-31 (statement of John Roberts, Exec. Vice President, Wounded Warrior Project).

185. Jill Carroll, Older Vets Now Helping Vets of Iraq and Afghanistan, CHRISTIAN SCI. MONITOR (June 10, 2008,12:00 AM), http://www.csmonitor.com/USA/Military/2008/

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helps heal veterans' unseen wounds.̂ ^^ Such programs, including the volunteer group American Combat Veterans of War, provide some- thing that many civilian psychologists and counselors cannot provide: the relatability of going to war and combat. ̂ '̂' By talking with mili- tary peers, rather than civilians who have never served in the mili- tary, these combat veterans, both young and old, feel more open to discuss their combat and war-related experiences. As one psychiatrist noted, there is an "enormous chasm of understanding between people who have been to war and civilians . . . It's not that credentialed pro- fessionals have no role . . . It's that they don't belong on center stage."^^^ By encouraging VSOs and other non-profits, community- based progranffi that bring together not only the veterans of all wars but those that have so far survived the aftermath of war can ensure that veterans of new conflicts can receive community-based help in a safe environment that otherwise may not exist within the VA.

Another incredibly successful—yet woefully underfunded and un- derutilized—program is pet therapy. ̂ ^̂ Employed in small numbers by both the VA and non-profits, both horses^^° and dogŝ ^^ are used to help veterans through suicidal ideation and other mental health is- sues. Some of these programs focus on the companionship and coping mechanisms dogs and horses provide veterans. ̂ ^̂ others focus on training service dogs to watch for mental health "cues" in the veteran, such as training a dog to sense when a veteran's mood changes and

0610/pOlsOl-usmiJitml. The controversy stems fi'om concerns that PTSD-inflicted vet- erans are helped and coimseled by other PTSD-inflicted veterans, not by trained psychi- atric or psychologi:;al professionals. Id.

186. Id. 187. Id. 188. Id. (quoting Dr. Jonathan Shay). 189. Bryan Joidan, Veis Using Watchdogs Against PTSD, MILITARY.COM (Sept. 8,

2010), http://www.military.com/news/article/vets-using-watchdogs-against-ptsd.html. For example, a New Mexico-based program called "Paws and Stripes" needs $1,800 for each "psychiatric service dog" trmned for a vetersin. There are currently only 10 veter- ans in the program, with 40 more waiting to start once more funding is available. Id.

190. See, e.g., Hoyt Harris, How Horses Are Helping U.S. Soldiers with P.T.S.D., KATC NEWS (NOV. 11, 2010, 6:12 PM), http://www.katc.com/news/how-horses-are-help- ing-u-s-soldiers-wi-,h-p-t-s-d (describing Equine Assisted Psychotherapy); Dee Sarton, Helping Veterans Juith PTSD in a New Way, KTVB NEWS (NOV. 7, 2011, 10:39 PM), http://wvirw.ktvb.CGm/news/A-new-way-that-helps-veterans-with-PTSD-133416303.html (describing Tranquil Valley Sanctuary); David Tarrant, Veterans Bond with Horses iri Therapy Program, SWEETWATER REP. (Texas), Feb. 6, 2012, at 3, available at http://texas history.unt.edu/ark:/67531/metapth229681/ml/3/ (describing Rock Top Therapy Center and Horses for Heroes).

191. See, e.g.. Veterans Services, PSYCHIATRIC SERV. DOG SOC'Y, http://www.psychdog .org/veterans2.htma (last visited Mar. 16, 2012).

192. Tarrant, supm note 190. In describing the Horses for Heroes program at the Rocky Top Therapy Center, Iraq veteran Robert MacTamhais stated, "[T]alking with the horse is what's helped me the best." Id.

2013] "TO HAVE NO YESTERDAY" 425

then react accordingly. ̂ ^̂ Further, there is a current congressional effort to require the VA to establish a pilot program allowing veterans suffering from PTSD to train service dogs that, upon completion of that training, will be given to other physically disabled veterans. ̂ ^̂ Given the measured success of these programs, ̂ ^̂ and the growing popularity to help heal veterans suffering with mental health disor- ders and suicidal ideation, these programs must continue to be sup- ported locally and nationally via congressional funding. ̂ ^̂

V. PROPOSED LEGAL CHANGES IN THE MILITARY, CONGRESS AND IN COURTS

Despite the major advances made in the Department of Defense ("DoD"), the Department of Veterans Affairs ("VA"), and within local communities to help stave off staggering suicide rates among military personnel and veterans, laws and policies within and outside of the military bar many veterans from receiving the benefits they so desper- ately deserve. While in service, military personnel are subject to a different set of laws than civilians: the Uniform Code of Military Jus- tice ("UCMJ").^ '̂' As a result, military personnel can be punished for acts that would otherwise be dismissed in civilian courts, such as adultery. Further, when servicemembers separate from the military under conditions "Other than Honorable," VA laws and regulations prevent these veterans from receiving benefits—even when the reason they were separated was a direct result of post-traumatic stress disor- der ("PTSD") or traumatic brain injury ("TBI"), which they incurred in combat and as a result of serving in the military. This section outlines legal problems such as these and what the federal government—Con- gress, the DoD, and the VA—must do to resolve them.

193. Veterans Services, supra note 191. For example, dogs can be trained to wake a vetersin and turn on bedroom lights if the veteran is experiencing night terrors.

194. Press Release, Office of Congressman Michael Grimm, Rep. Grimm's Veterans Dog Training Therapy Act Passes House COct. 11, 2011) (on file with author), available at http://grimm.house.gov/press-release/rep-grimm%E2%80%99s-veterans-dog-therapy- training-act-passes-house. The House paœed the legislation passed unanimously in Oc- tober 2011, eind it is now in consideration, in the Senate.

195. See, e.g., Harris, supra note 190. One study revealed that 100% of PTSD soldiers who have participated in the Equine Assisted Psychotherapy program have "met with success" in "getting beyond" PTSD. Id.

196. For a personal account of how dogs can save veterans, see generally Luis CAR- LOS MoNTALVAN & BRET WITTER, UNTIL TUESDAY: A WOUNDED WARRIOR AND THE GOLDEN RETRIEVER WHO SAVED HIM (2011).

197. 10 U.S.C. §§ 801-946 (2012). The statutory provision that applies the UCMJ to military personnel is 10 U.S.C. § 802.

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A. BEFORE TEEY LEAVE: LEGAL SOLUTIONS FROM WITHIN .

Private ("Fvt.") Lazzaric Caldwell was diagnosed with PTSD and a personality disorder in 2009 while serving in the Marine Corps. Within a year, the military charged him with a number of offenses (such as larceny); his former flancée stabbed him; and he. incurred the loss of many family members. The day after he learned of the death of his friend, Pvt. Caldwell tried to commit suicide by cutting his wrists.1^^ After being "patched up," he was charged with a UCMJ crime: "intentional self-injury without intent to avoid service."^^^ A military judge sentenced Pvt. Caldwell to 180 days in jail, and he was given a bad conduct discharge from military service.^^" Though he pled guilty, he has appealed the decision, which was recently decided by the United States Court of Appeals for the Armed Forces.^"^

Pvt. Caldwell's attorney argued on appeal that Pvt. Caldwell could not have had the requisite intent to commit the crime due to mental illness: his diagnosed PTSD from a year earlier.^^^ While there may be cases where the servicemember attempts to commit sui- cide to avoid military service, if the servicemember has a history of any mental health disorder—including, but especially PTSD, TBI, de- pression, and other related diagnoses—related to coinbat and military service, that sra^icemember should not be charged with a crime after an attempted suicide. There is far too much evidence to suggest that there is not a correlation between suicidal ideation, TBI, and PTSD, especially because both TBI and PTSD are prevalent in military per- sonnel.2°^ Mental health breaking the mens rea element within the criminal justice system—including the military justice system—is not a new phenomenon,^^^ and there is no reason to disallow this t3^e of defense in military courts, especially at a time when Congress and the

198. David Dishneau, Marine Fights Conviction for Suicide Attempt, NAVY TIMES (Feb. 2, 2012, 2:41 PM), http://www.navytimes.com/news/2012/02/ap-marine-fights- conviction-for-suicide-attempt-020212/.

199. 10 U.S.C. § 934 (codifying the text from UCMJ art. 134). 200. Dishneau, supra note 198. 201. United States v. Caldwell, 72 M.J. 137 (C.A.A.F. 2013); see also Dishneau,

supra note 198. Pvt. Caldwell's conviction for his suicide attempt was overturned by the court. However, the court limited its decision to the facts of the case, and despite nu- merous judges (induding the dissenting judges and lower court military judges) ques- tioning the military's policy of prosecuting suicide attempts, the option to prosecute such offenses still exists under Article 134 of the U.C.M.J. See Caldwell, 27 M.J. 137; see also id. (Ryan, J., dissenting).

202. Id. 203. See supra Part III. 204. See, e.g., Henry F. Fradella, From Insanity to Beyond Diminished Capacity:

Mental Illness and Criminal Excuse in the Post-Clark Era, 18 U. FLA. J .L . & PUB. POL'Y 7 (2007).

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public watches the rising suicide rate within DoD with a magnifying glass.

Additionally, as pointed out by Pvt. Caldwell's attorney, there is an inherent unfairness between military personnel that attempt sui- cide, and those that commit suicide. For those military personnel that "merely" attempt suicide, they can often be charged with a crime via the UCMJ, similar to Pvt. Caldwell. For those that are "successful," however, the military servicemember is treated as having died "in the line of duty"; and thus, he or she receives an Honorable discharge that allows his or her family to receive a multitude of benefits from the DoD and VA. This fiawed system rewards a successful suicide attempt while punishing those who attempt and fail. The significant ramifica- tions that result from treating suicide attempts as a crime should be reason enough not to treat them as crimes. Suicidal military person- nel are convicted, kicked out of the military, and barred from receiving any future benefits or mental health care from the DoD or VA. This treatment of suicidal military personnel is in stark contrast to the ci- vilian system, where being charged after a suicide attempt usually en- sures the civilian will receive the necessary mental health care he or she needs to recover.^"^ In fact, even after charging Pvt. Caldwell, and hearing his guilty plea of attempted suicide, the military judge accepted the plea without so much as ordering a mental health exami- nation.2°^ The military must change its policy, or the UCMJ,^^'' to ensure that servicemembers and veterans who are in desperate need for mental health help are not merely kicked out of the system and left to fend for themselves.

The case of Pvt. Caldwell brings up another issue as well. Due to the self-injury conviction in court-martial, Pvt. Caldwell was dis- charged from the Marine Corps with a "bad conduct discharge."^"^ This class of discharge, along with the more commonly-known "Dis-

205. Veterans courts offer treatment similar to that of specialized drug courts, and these courts are another option for veterans charged with crimes in some jurisdictions. Instead of being sentenced to jail or prison, many veterans instead undergo specialized treatment based on their circumstances, and the treatment often involves the successful completion of mental health care progranB. For a background of some of the veterans courts and their success, see generally Julian M. Cavanaugh, Helping Those Who Serve: Veteran Treatment Courts Foster Rehabilitation and Reduce Recidivism for Offending Combat Veterans, 45 NEW ENG. L. REV. 468 (2011); Samantha Wells, The Need for Spe- cial Veterans Courts, 39 DENV. J . INT'L L. & POL'Y 695, 714-28 (2011).

206. Dishneau, supra note 198. 207. The UCMJ, like other federal laws, is controlled hy Congress. Most of the

UCMJ laws are written in Title 10 of the United States Code. See 10 U.S.C. §§ 801-946 (2012). A few crimes, those of the "non-enumerated" tjfpe, are written and enforced by military persoimel. See JOINT SERV. COMM. ON MILITARY JUSTICE, MANUAL FOR COURTS- MARTIAL UNITED STATES pt. 4, f 103a (2008) [hereinafter MANUAL FOR COURTS-MAR- TIAL], available at http://www.loc.gov/rr/frd/Military_Law/pdf/'MCM-2012.pdf.

208. Dishneau, supra note 198.

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honorable Discharge," will prevent Pvt. Caldwell from receiving mental health benefits that he needs from the

B. THE ROLE OF OTHER THAN HONORABLE DISCHARGES FOR VETERANS INFLICTED WITH MENTAL HEALTH DISORDERS

The bad conduct discharge Pvt. Caldwell received as a result of his suicide attempt will prevent him from receiving any VA benefits, including mental health care for the PTSD and the personality disor- der he was diagnosed with while in service.^^" While there are a num- ber of reasonable justifications for giving benefits only to veterans that receive an Honorable discharge, those justifications do not easily apply to serviœmembers, like Pvt. Caldwell, who are separated from service due to their actions resulting from their PTSD, TBI, and other mental health disorders incurred while in service. The following ex- ample helps to humanize the problem: A soldier receives a TBI from an improvised explosive device ("IED") explosion in Afghanistan, and, upon returning home from combat, begins to develop a number of mental health issues as a result of the TBL Reeling from these problems, and while still serving on active duty, the solider commits a petty crime.2iï Medical evidence exists demonstrating the act was a result of the mental health issues, and yet the DoD separates the sol- dier from service with an Other than Honorable discharge. Neither the VA nor DoD forgive or dismiss the servicemember's conduct that resulted from his underlying mental health condition.212 He is no longer able to receive any mental health care for the TBI he incurred while serving his country in a foreign war. Instead, the soldier is left to fend for himself for a petty crime that in the civilian world would have instead resulted in mental health care.

These types of situations can be prevented in two ways: one inter- nal to the command authority within the DoD, and the other via VA statutes and regulations. First, command authorities must recognize that while good order and discipline is certainly a necessity for mili- tary success, suicidal acts that are a direct result of PTSD, TBI, and other related mental health issues that the servicemember incurred in service should not be found guilty of, or even charged under, UCMJ

209. For £in extended discussion of the intersection of other-than-honorable dis- charges and PTSD, and their role in preventing veterans from receiving adequate mental health care^ see Tiffany M. Chapman, Leave No Solider Behind: Ensuring Access to Health Care for PTSD-Affiicted Veterans, 204 MIL. L. REV. 1 (2010).

210. See Fairweather, supra note 144, at 7. 211. In the end, it does not really matter how petty or serious the crime is. Just

about any crime, from a misdemeanor up to a felony, can result in an "other than honor- able" discharge. See MANUAL FOR COURTS-MARTIAL, supra note 207, at app. 12.

212. See Chapman, supra note 209, at 43.

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crimes.213 The same policy should apply for acts that are criminal or behavioral in nature if the act stems from a mental health disorder that the servicemember incurred in service. Instead, command au- thorities should, if necessary, opt to separate the individual using ad- ministrative means and without recommending an Other than Honorable tj^je of discharge to ensure the servicemember can still re- ceive mental health benefits through the VA health care system.

Second, Congress can amend statutes,^!^ and the VA can update their regulations,^^^ so that veterans who receive Other than Honora- ble discharges can still receive minimal mental health care. This is not to say the VA should "open the flood gates," allowing all veterans, regardless of the type of separation they receive, to receive any and all benefits the VA offers. Instead, the VA should continue to provide the necessary mental health care to any veteran that receives an Honora- ble discharge and to any veteran that receives an Other than Honora- ble discharge whose discharge was related to the mental health disorder they received while in service.^^^ In the example above, the soldier who was separated due to a petty crime, which was activated by his TBI and other related mental health disorders, should be able to receive mental health care^i^ for these problems he incurred while in Afghanistan.

To otherwise prohibit mental health care benefits is to deny veter- ans help that they desperately need and often can literally be the dif- ference between life and death. Veterans with mental health disorders cannot always be held completely responsible for their crimes or acts;2i8 sometimes the mental health disorders prevent them from acting like a reasonable person. For the DoD and VA to avoid responsibility, and treat such servicemembers and veterans as if they have the same mental capacity as someone without TBI, PTSD, or suicidal ideation, is to put one's head in the sand and hope that once

213. There are some options to allow voluntary separations, which would allow the servicemember to receive an honorable discharge. This option is left largely up to the commanding officer. See Chapman, supra note 209, at 2 n.4.

214. 38 U.S.C. § 5305 (2012). 215. 38 C.F.R. § 3.12 (2012). 216. One very small exception exists: where the servicemember is deemed insane at

the time of the underlying offense for which they are separated from service. 38 U.S.C. § 5303(b); 38 C.F.R. § 3.354(b). However, this exception rarely, if ever, applies to PTSD and TBI-like cases. See Chapman, supra note 209, at 4.

217. I limit this to proposal to mental health care. There are a number of veterans who cannot receive health care from the VA due to budget constraints, and there are only limited fiinds available for other benefits, such as pension and disability benefits, that should be limited to those that honorably served.

218. "Through no fault of their own. Soldiers may incur disabilities in the course of that service and rely on the assurance that the VA system will identify and treat their service-connected disabilities." Chapman, supra note 209, at 38.

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the servicemember has left the military he or she will be someone else's problem.^^^

If the veterans that needed mental health care did receive the care they needed after service, a number of positive consequences would occur. By providing mental health care, the DoD and VA would actually save money because they would be preventing future suicides among such servicemembers and veterans.^2° Providing mental health care would better integrate veterans into civilian life and allow them to become more productive members of society.^^^ Ultimately, this would mean thej' would be less likely to commit

C. AFTER SERVICE: THE LEGAL RAMIFICATIONS FROM CALLING THE VETERANS CRISIS LINE AND RELATED STIGMA

No veteran should be punished for contemplating or attempting suicide. Yet this is exactly what happened to Navy veteran Sean Du- vall in June 2C11. Shortly after losing his job as a part-time cook and becoming homeless, the divorced father of two contemplated commit- ting suicide with a homemade gun he fashioned from a steel pipe, a nail, and a shotgun shell.^^^ Reeling from deep depression, Mr. Du- vall called the Veterans Crisis Line at "his lowest moment."^^* The counselor at the other end of the line assured Mr. Duvall that he would receive help. Mr. Duvall did not commit suicide. Instead, a po- lice officer arrived to Mr. Duvall's location to drive him to a psychiatric hospital. Mr. Duvall received the medical help he needed, and with the help of counseling and medication was even able to find a new job. Yet just a week later, the state charged Mr. Duvall with a misde- meanor under state law: illegally carrying a concealed weapon. As if that was not bad enough, the state dropped the charges at the request of a federal prosecutor so that Mr. Duvall could be charged with four federal felony charges related to the makeshift weapon with which he planned to commit suicide.^^^

219. See Chapman, supra note 209, at 27 ("Current legislation . . . ignore [s] the fact that PTSD may be a service-connected disability because of its debilitating effects, that it is often incurred in combat operations, and that PTSD manifests through misconduct, violence, and substance abuse.").

220. Providing Best Mental Health Treatments for All Veterans Could Save Money as Well as Lives, RAND REV., Winter 2011-2012, at 4, available at http://www.rand.org/ publications/randreview/issues/2011/winter/newsl.html.

221. Id. 222. See Daniel Burgess, Nicole Stockey & Kara Coen, Reviving the "Vietnam De-

fense": Post-Traun-.atic Stress Disorder and Criminal Responsibility in a Post-Iraq/Af- ghanistan World, 29 DEV. MENTAL HEALTH L. 59, 65-68 (2010) (noting the link between PTSD and criminal behavior).

223. Hammack, supra note 157. 224. Id. 225. Id.

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Thankfully, veteran and mental health advocates intervened on Mr. Duvall's behalf, and Mr. Duvall's federal charges were delayed to allow Mr. Duvall an opportunity to enroll in a Veterans Treatment Court program. If he successfully completes the program, the federal prosecutor will drop the charges.^^^

The biggest problem with how the government—both local and federal authorities and agencies—treated Mr. Duvall was that it sim- ply was in stark contrast to all of their publicized statements. At a time when government agencies are spending millions of dollars on suicide prevention efforts, and encouraging military personnel and veterans to seek help, they are hindering their own efforts. Govern- ment agencies are doing so by not providing the confldentiality they promised to veterans who call services such as the Veterans Crisis Line, and by punishing those veterans who they claim they are trying to protect. It was only after public outrage and the intervention of many veteran and mental health advocates that Mr. Duvall was fl- nally given the option to seek help via a Veterans Treatment Court,227 but even this was almost too little too late. To charge veterans who are known to be suicidal, especially those who are actively seeking help by utilizing services such as the Veterans Crisis Line, could eas- ily plunge these veterans into committing a successful suicide. Addi- tionally, veterans who were contemplating calling the Veterans Crisis Line may now hesitate to do so, especially if they believe that they may be charged with a crime. The Veterans Crisis Line must main- tain the upmost degree of confidentiality. Otherwise, it will simply not succeed at its mission of helping suicidal veterans stay alive.228

VI. CONCLUSION

The atrocious rise of suicide rates in the military and among vet- erans is a cause of concern for the Department of Defense ("DoD"), the Department of Veterans Affairs ("VA"), and society in general. De- spite the historically low rates of suicides within military personnel, especially during war, some force is causing the tides to turn. Some of the symptoms are known, but it is the underlying cause that must be uncovered and analyzed in order for federal and state agencies to properly diagnose and cure the rising suicide rates. The VA and DoD have implemented a number of programs to help stave off increased suicides rates, but they may only have stopped the numbers from ris-

226. Laurence Hammack, Suicidal Veteran Charged with Weapons Violations Is Al- lowed to Enroll in Treatment Program, ROANOKE TIMES (Feb. 27, 2012), www.roanoke. com/news/breaking/wb/305470.

227. Id. 228. See id.

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ing further instead of actually treating the problem, which would de- crease the number of suicides. Many of the programs initiated by Veteran Service Organizations ("VSOs") and community organizations have been highly successful, and the VA, with congressional support, should expand or implement the same programs on a much larger scale for "[t]here is nothing more tragic than the death by suicide of even one of the great men or women who have served this nation."^^^ Regardless of these short-term successes, until the DoD and VA de- velop a valid metric system to track suicide rates of those enrolled in such programs, the long-term effectiveness may never be known.

Additionally, these programs can only go so far. If there are not changes made via statute, regulation, and policy, military personnel and veterans will continue to be punished for attempting suicide and prevented from receiving the mental health care they so desperately need. To forego these necessary changes will only alienate those who would otherwise seek help and thereafter commit suicide. The differ- ence is literally one of life and death.

229. Press ReJease, Dep't of Veterans Affairs, VA Secretary Appoints Panel of Na- tional Suicide Experts (May 21, 2008) (on file with author) (quoting Dr. James B. Peake), available at http://wwwl.va.gov/opa/pressrel/docs;'suicide-panels.doc.

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