US: Raped in Military—Then Punished

WASHINGTON - Thousands of United States service members who lost their military careers after reporting a sexual assault live with stigmatizing discharge papers that prevent them from getting jobs and benefits, Human Rights Watch said in a report released today. The report is the result of a 28-month investigation by Human Rights Watch, with the support of Protect Our Defenders, a human rights organization that supports and advocates for survivors of military sexual assault. Under pressure from the public and Congress, the US military has in recent years implemented some protection for service members who report sexual assault, but nothing has been done to redress the wrongs done to those who were unfairly discharged.

The 124-page report, “Booted: Lack of Recourse for Wrongfully Discharged US Military Rape Survivors,” found that many rape victims suffering from trauma were unfairly discharged for a “personality disorder” or other mental health condition that makes them ineligible for benefits. Others were given “Other Than Honorable” discharges for misconduct related to the assault that shut them out of the Department of Veterans Affairs healthcare system and a broad range of educational and financial assistance. The consequences of having “bad paper” – any discharge other than “honorable” – or being labeled as having a “personality disorder” are far-reaching for veterans and their families, impacting employment, child custody, health care, disability payments, burial rights – virtually all aspects of life.

“Military rape victims with bad discharges are essentially labeled for life,” said Sara Darehshori, senior counsel in the US program at Human Rights Watch and author of the report. “Not only have they lost their military careers, they have been marked with a status that may keep them from getting a job or health care, or otherwise pursuing a normal life after the military.”

“Bad paper” has been correlated with high rates of suicide, homelessness, and imprisonment among veterans. Those with “personality disorder” or other mental health discharges have to live with the additional stigma of being labeled “mentally ill.”

Despite the high stakes, there is little veterans can do to fix an unjust discharge, Human Rights Watch found. US law prohibits service members from suing the military for any harm suffered related to their service. The Boards for Correction of Military Records and Discharge Review Boards, the administrative bodies responsible for correcting injustices to service members’ records, are overwhelmed with thousands of cases.

Human Rights Watch, with assistance from Protect Our Defenders, conducted more than 270 in-person and telephone interviews, examined documents produced by US government agencies in response to numerous public record requests, and analyzed data on cases in the Boards for Correction reading room that referenced “personality disorder” or “adjustment disorder.” Researchers spoke to 163 survivors of sexual assault from the Vietnam War era to the present day.

“As I look back on the incident I have at times cursed myself for speaking up and reporting what happened,” one rape survivor said. “I cannot even begin to express how this entire ordeal has affected my life.”

In recent years, public attention has been drawn to the problem of combat veterans being given bad discharges for mental health conditions or misconduct that may in fact be symptomatic of Post-Traumatic Stress Disorder (PTSD). Congress has made it harder to discharge combat veterans on mental health grounds without checking for PTSD. However, the additional protections have not been extended to sexual assault survivors even though they also suffered trauma in service and the prevalence of PTSD is higher among rape victims than combat veterans.

“We regularly hear from people who report sexual assault that they are being threatened with discharge for mental health reasons or trumped-up misconduct charges,” said Colonel Don Christensen, president of Protect Our Defenders and a former Air Force chief prosecutor. “Traumatized young service members may be willing to take a bad discharge just to escape their perpetrator without realizing the costs of their decision. Many more buy into the myth that it will be easy to upgrade their discharge later.”

The Defense Department’s standard response to service members who suffered sexual assault and allege improper discharge is to recommend they seek review by the Boards for Correction of Military Records or Discharge Review Boards. However, well over 90 percent of those applying to the Boards are rejected with almost no opportunity to be heard or any meaningful review. Lawyers for veterans say their cases often include considerable evidence and supporting documents. Yet Board members often spend only a few minutes deciding a case and may reach a decision without reading the submitted material. Because the courts give special deference to military decisions, judicial oversight of the Boards is virtually nonexistent.

“Military lawyers and veterans see the Boards as a virtual graveyard for their cases,” Darehshori said. “Many veterans we spoke with were reluctant to put themselves through the trauma of reliving their assault to try to fix their record when they saw no hope for success.”

Congress should require the Defense Department to expedite review of cases of sexual assault victims who believe they were wrongfully discharged. The defense secretary should instruct the Boards to be more open to considering upgrade requests from sexual assault victims, bring evidentiary requirements for proving a sexual assault into line with those used by the Department of Veterans Affairs, and create a presumption in favor of changing the reason for discharge from personality disorder to “Completion of Service,” in certain cases.

To ensure that all service members receive due consideration of their claims, Congress should create a right to a hearing before the Boards for Correction of Military Records and provide greater information to the public on all decisions. A representative working group should be created to study standards for granting relief and determine best practices and procedures.

“Immediate reform is desperately needed to ensure that military sexual assault survivors can get a meaningful remedy for the wrongful discharges that darken their lives,” Darehshori said. “They deserve support, not censure.”

The following are quotes from rape survivors and advocates interviewed by Human Rights Watch or contained in documents Human Rights Watch reviewed. Starred victims’ names have been replaced with pseudonyms to protect their privacy.

“Why should I be discharged because I was raped? I did what I was supposed to do. Had I never come forward I truly believe I would still be in the Air Force.”
–A1C Juliet Simmons,* November 2012

“I carry my discharge as an official and permanent symbol of shame, on top of the trauma of the physical attack, the retaliation and its aftermath.”
–Brian Lewis, March 2013

“Although agencies exist to which you may apply to upgrade a less than Honorable Discharge, it is unlikely that such application will be successful.”
–Army Developmental Counseling Form

“I defy any of you not to have mental consequences if you were raped and harassed repeatedly and even set on fire, while management looked the other way and just laughed.”
–Testimony of Amy Quinn before the Judicial Proceedings Panel on Sexual Assault in the Military, May 19, 2015

“I was 18 years old, was a mental mess, and was terrified to be back aboard [the ship] any longer than I had to. I wasn’t protected, I wasn’t helped, I wasn’t safe from any type of harm! So how did I actually know what I was signing or even in fact what an OTH [Other Than Honorable] discharge was to mean? How was I to know that from all the sexual attacks that I had to suffer and the harassment, assaults, threats to my life and safety that for all these years [the discharge would be] a huge factor to how I lived and how my life ended up?”
–SR Heath Phillips, 2013

“It is bad enough to go through military sexual trauma, but to be discredited and labeled is difficult to overcome and causes so much damage. PD [Personality Disorder] is another level of betrayal because it is so stigmatizing.… People think there is something wrong with me and don’t realize it was a label just stuck on people.”
–PFC Eva Washington*, October 2013

“I have practiced law in Texas for 31 years now, and I’ve appeared in different state and federal courts in a variety of administrative settings and this is the only time that I've been before a discharge review board. It was a horrific experience … I found myself being cut off and my client being screamed at which was unlike any experience I have ever had before. My client was just completely re-victimized. They didn’t really care what we had to say. We got a decision a few months later that was erroneous in a number of different respects … and it was a 5-nothing decision not to upgrade.”
–JoAnn Merica, attorney for a veteran who was discharged for misconduct after reporting sexual harassment, March 2016

“As I look back on the incident I have at times cursed myself for speaking up and reporting what happened but ... I thought I was doing the right thing … I cannot even begin to express how this entire ordeal has affected my life; it won’t go away and I still struggle with self-esteem and trust and the entire myriad of symptoms victims of sexual assault suffer … the Navy discarded me like a piece of scrap iron or less; truthfully, this ordeal continues to haunt me ... I am a broken man.”
–SA Ken Nelson,* October 2012