An Attorney s Guide to the Veterans Sentencing Mitigation Statute

An Attorney s Guide to the Veterans Sentencing Mitigation Statute An Overview John Baker Attorney at Law Baker Williams Law Firm Fighting for Those Who Fought for Us 2785 White Bear Avenue North Suite 402 Maplewood, MN 55109 Toll Free: 1-877-434-VETS Phone: 651-773-4111 Fax: 651-204-0020 jbaker@bakerwilliamslaw.com www.bakerwilliamslaw.com September 2010 This material is meant to be a general overview of Minnesota Statute Chapter 609.115 Subd 10. Be sure to look into these issues more thoroughly before advising your client. Copyright 2010 Baker Williams, LLP

Contents 1) Introduction.... 3 2) The statute.... 4 3) How do you find out if someone is on active duty... 5 4) How to determine whether an individual is a veteran.... 5 5) How to obtain a copy of a DD 214.... 6 6) How to read a DD 214.... 6 7) How to determine whether a veteran is a combat veteran.... 7 8) How to connect a veteran with the Department of Veteran Affairs.... 7 Appendix A Sample DD 214 Certificate of Release or Discharge from Active Duty Copyright 2010 Baker Williams, LLP Page 2

Veterans Sentencing Mitigation Statute 1) Introduction. What do you do when either a veteran or service member comes through your door or you get a call from jail? Many times the call for help from a combat veteran comes from the back of a squad car. At this point many veterans have been trying to deal with their issues related to their military experiences themselves. Many self medicate with drugs and or alcohol or both. DUIs, domestic violence, fights in a bar, and other criminal activity can result. So what do we do with our war veterans whose criminal offenses are tied to their untreated psychological war injuries and related addictions? In 2008 the Minnesota Legislature proposed an answer to this question by passing pioneering legislation that encourages treatment for veterans whose criminal offenses are linked to their war service. A group of veterans drafted and led passage of the bill and are now working at a national level to promote similar legislation in all 50 states. The new law opens up formal lines of communication between Minnesota s criminal courts and the VA system. The goal is to ensure that a mental health diagnosis and available treatment options are taken into account in sentencing a veteran whose combat trauma played a role in his or her criminal offense. The law does not force a judge to do anything in a particular case, rather, it allows a judge to use discretion when making a sentencing decision for the veteran defendant. The law recognizes that treatment and probation is often preferable to a single stint of incarceration in getting to the root of the veteran s problem and ensuring long term public safety. This is not a get out of jail free card for veterans. Completion of VA treatment should be a condition of probation and failure to follow through should result in jail. How does an attorney make proper use of this new tool to help veterans and service members? First, you have to find out if the individual you are dealing with is a veteran or current service member. Then find out if they are a combat veteran. Finally, determine whether they are experiencing some combat stress, full blown PTSD or some other mental health issues related to their military experience (this will be covered more substantively in other parts of the CLE presentation). This resource is meant to be a boots on the ground starting guide for attorneys helping veterans and service members. Copyright 2010 Baker Williams, LLP Page 3

2) The statute. Minn. Stat. 609.115 Subd. 10. Military veterans. (a) When a defendant appears in court and is convicted of a crime, the court shall inquire whether the defendant is currently serving in or is a veteran of the armed forces of the United States. (b) If the defendant is serving in the military or is a veteran and has been diagnosed as having a mental illness by a qualified psychiatrist or clinical psychologist or physician the court may: (1) order that the officer preparing the report under subdivision 1 consult with the VA, Minnesota Department of Veterans Affairs, or another agency or person with suitable knowledge or experience, for the purpose of providing the court with information regarding treatment options available to the defendant, including federal, state, and local programming; and (2) consider the treatment recommendations of any diagnosing or treating mental health professionals together with the treatment options available to the defendant in imposing sentence. EFFECTIVE DATE. This section is effective August 1, 2008. Copyright 2010 Baker Williams, LLP Page 4

3) How do you find out if someone is on active duty? Oftentimes it will come out right away that an individual is in the military. If you think that the person is in the military simply ask them for their military identification card. An example is provided below. The expiration date will help you determine whether the individual is currently on active duty. Another way to determine whether someone is on active duty is to use the Defense Manpower Data Center s (DMDC) Military Verification Service. Provisions of the Service Members Civil Relief Act (SCRA) allows access to this information. The website is: https://www.dmdc.osd.mil/appj/scra/scrahome.do You will need the individuals full name, social security number and date of birth. When the check is performed you will be able to obtain written documentation that the individual is in the military and it will contain the Department of Defense seal and signature. Please note that you may be able to verify that the individual is in the military without their social security number but in that case the Department of Defense cannot authoritatively assert that they are a member of the armed forces. 4) How to determine whether an individual is a veteran. The statute only says that the court has to inquire as to whether the defendant is a veteran of the armed forces of the United States. The term veteran means a citizen of the United States or a resident alien who has been separated under honorable conditions from any branch of the armed forces of the United States if (please note that an honorable discharge is not required under this statute): he or she has either served on active duty for 24 months of continuous active duty service, or has been disabled while serving on active duty, or Copyright 2010 Baker Williams, LLP Page 5

has active service as a reservist. In all cases, the United States Secretary of Defense must certify the active service and the honorable discharge of the veteran. This is normally done by submission of Department of Defense Form 214 (DD 214) Certificate of Release or Discharge from Active Duty. 5) How to obtain a copy of a DD 214. The Department of Defense Form 214 (DD 214) - Certificate of Release or Discharge from Active Duty is the document you will need to provide proof of military service. Upon release from active duty a veteran is given several copies of this form. A veteran uses this document throughout the rest of their life to gain access to veterans benefits. It can provide proof for the following: Proof of military service for employers, the VA, and the Social Security Administration Proof of service in a combat zone Proof of assignment to a particular unit or ship Identify and verify authorized awards and decorations Retirement benefits (if applicable) Government employment preferences Membership in veterans organizations If the individual does not have a copy of their DD 214 you will need to obtain one for them. You can request a copy of the DD 214 from the National Personnel Records Center. The following website provides details for obtaining the DD 214: http://www.archives.gov/stlouis/military-personnel/public/general-public.html. There are specific procedures for assisting the veteran in obtaining the document. When making the request the following information is required: Full name of veteran Social security number Military service number (if applicable) Branch of service 6) How to read a DD 214. A Department of Defense Form 214 (DD 214) Report of Separation from the Armed Services of the United States is generally issued when a service member performs active duty or at least 90 consecutive days of active duty training. Information shown on the DD 214 may include the service member's: Date and place of entry into active duty Home address at time of entry Date and place of release from active duty Home address after separation Last duty assignment and rank Copyright 2010 Baker Williams, LLP Page 6

Military job specialty Military education Decorations, medals, badges, citations, and campaign awards Total creditable service Foreign service credited Separation information (type of separation, character of service, authority and reason for separation, separation and reenlistment eligibility codes) The report of separation form issued in most recent years is the DD Form 214. Before January 1, 1950, several similar forms were used by the military services, including the WD AGO 53, WD AGO 55, WD AGO 53-55, NAVPERS 553, NAVMC 78PD, and the NAVCG 553. There are five types of discharges. They are as follows: Honorable General (under honorable conditions) Other than honorable Bad conduct discharge Dishonorable Normally veterans benefits and disability will depend on the type of discharge received. You will need to consult with the U.S. Department of Veterans Affairs or one of the resources listed in Section 8 below to determine eligibility. 7) How to determine whether a veteran is a combat veteran. The most common way to determine whether a veteran has served in combat is to look at Section 13 of the DD 214 Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized. If a veteran has participated in direct combat the following medals or badges should be listed: Army Combat Infantryman Badge for infantryman - Combat Action Badge for non-infantry Navy Combat Action Ribbon Marine Corps Combat Action Ribbon Air Force Combat Action Medal (authorized as of March 15, 2007) Coast Guard Combat Action Ribbon You can determine where they participated in combat operations by looking in Section 18 of the DD 214. This section should say that they served in a designated imminent danger pay area. It should also indicate where they served (e.g. Service in Afghanistan from [date] to [date]). You can also look at the campaign medals such as the Iraq or Afghanistan Campaign medals for current conflict veterans. Please note that for women veterans and non-infantry veterans determining whether or not they were in combat can be problematic because of the Combat Exclusion Law (women). Copyright 2010 Baker Williams, LLP Page 7

8) How to connect a veteran with the Department of Veteran Affairs. If you have a veteran that comes through your door and you find out that they are currently not receiving health care (mental or physical) or disability benefits from the Department of Veterans Affairs there are several things you can do. Vet Center. Vet Centers provide readjustment counseling and outreach to all veterans (you do not need to be qualified for VA benefits) who served in combat or who have been a victim of military sexual trauma regardless of combat. The Vet Center website is http://www.vetcenter.va.gov/. In Minnesota there are centers located at: o St. Paul Veterans Resource Center 550 County Road D, Suite 10 New Brighton, MN 55112 Phone: 651-644-4022 Fax: 651-917-2555 o Duluth Vet Center 405 E. Superior Street Duluth, MN 55802 Phone: (218)-722-8654 Fax: (218)-723-8212 OEF/OIF Veterans. The U.S. Department of Veterans Affairs operates a special program for Operation Enduring Freedom (OEF) and Operation Iraqi Freedom (OIF) veterans. The OEF/OIF website is: http://www.oefoif.va.gov/. These programs are staffed around the country. They provide assistance in connecting veterans with a variety of benefits and services including, education benefits, health care, disability benefits and suicide prevention. Minnesota Department of Veterans Affairs (MDVA). The MDVA is an excellent resource for helping veterans with their benefits. They are located at: o Minnesota Department of Veterans Affairs Claims Office Room 191, Bishop Henry Whipple Federal Building 1 Federal Drive, Fort Snelling St. Paul, MN 55111 Phone: 612-970-5662 Copyright 2010 Baker Williams, LLP Page 8

The MDVA website is also an excellent internet resource for veterans resources in Minnesota. The website is: http://www.mdva.state.mn.us/index.htm. Also, please be advised that the State of Minnesota provides additional veterans benefits to qualified veterans. Minnesota County Veteran Service Officers (CVSOs). Each county in the State of Minnesota has at least one CVSO. They are also an excellent resource in obtaining benefits and services for a veteran. The website for the CVSOs is: http://www.mdva.state.mn.us/macvso/default.html. U.S. Department of Veterans Affairs (VA). With advancing technology the VA has built a very robust and valuable website. The website is located at: http://www.va.gov/. Veterans can now apply on-line for just about any type of benefit or service that is available to them. It is advisable, however, to contact one of the agencies listed above for detailed and assistance in successfully obtaining those benefits or services. ABOUT THE AUTHOR John Baker is a partner in the law firm Baker Williams, LLP, a full-service law firm dedicated to the legal needs of veterans, service members, wounded warriors and their families. Before starting Baker Williams, LLP, John was an associate at a major twin cities law firm working in the business law arena. He has also served as an attorney for the Minnesota United Veterans Legislative Counsel; served as an attorney for the Minnesota Veterans Homes Board as director of legal and regulatory services; worked as staff counsel for Minnesota Counties Insurance Trust, and clerked for the Honorable George T. Stephenson, Minnesota Second Judicial District. John retired from the United States Marine Corps as a Gunnery Sergeant after serving twenty-two years in the various infantry, artillery and administrative capacities in numerous locations within the United States and around the world. He graduated magna cum laude from Saint Cloud State University and is a graduate of Hamline University School of Law. John practices in the areas of criminal defense, veteran and military law, veterans preference, employment law, small business law, non-profit representation and estate planning. John chaired the initiative to start Veterans Courts in Minnesota. He also chairs the Veterans Advocacy Institute and is the chair of the Minnesota State Bar Association Military Law Committee. Copyright 2010 Baker Williams, LLP Page 9