If both individual and organizational greed largely describe the “Why” of Chapter 20, the final reason for the refusal to concede the low ground of the AVIP also falls under the broad category of “money,” but in the negative sense, rather than the positive one. In other words, saving money also plays a big factor in decisions regarding military members because active military members today represent veterans tomorrow, and that means large costs for the Department of Veteran’s Affairs (VA) – large costs that have not been budgeted and are never planned for, and yet mark every war with a regularity that is metronomic in its consistency.

It also has marked government treatment of U.S. veterans from the very founding of the Republic. Revoluationary War soldiers in many cases were not paid for their service as the original government under the Articles of Confederation had no power to tax. Soldiers, veterans, of the War for American Independence, were paid after the war’s conclusion in debt certificates known as “Pierce Notes.” Because no one believed they would ever be paid back, speculators bought them for 20 cents on the dollar from veterans desperate for cash in hand. After the Constitution was established and Alexander Hamilton was made Secretary of the Treasury, provisions were made to pay off the fledgling nation’s debts, but Hamilton’s plan would have paid the speculators and excluded the veterans.

[James] Madison, who had not served in combat, was outraged by this. It was the first moment he and Hamilton really broke on an important matter of public policy. He proposed to split the repayment equally between the speculators and the veterans. Unfortunately, this was totally impractical — the government lacked the resources to figure out who should be paid what. Moreover, imposing such a massive haircut on public creditors would have had extremely bad effects on the economy.[i]

In the end, most of the veterans simply never got paid. Now I am not trying to draw the outlines of a two-hundred-forty year conspiracy to stick it to veterans, rather I am trying to paint a picture of a governmental ‘habit,’ a kind of generational memory gap in which the new generation of bureaucrats has replaced the prior one, but with the same exact incentives to limit costs that neither the DoD, nor the VA, nor their paymasters – the U.S. Congress – ever plans for the post-war costs of the most recent clash. And that’s because Congress as an institutional always wants to minimize the possible costs to the American public when they’re considering spending tax dollars on military adventurism abroad. Like every government project ever, the estimates in advance of the project are always multiples lower than what it actually costs, cost overruns are the norm, and the can gets kicked down the road. It’s part of why our federal debt is now, as of 2020, north of $20 trillion dollars. Let me provide more modern examples of this government behavior and explicit policies.

Men in the United States flocked to join the military after the attack on Pearl Harbor. Famous athletes from Ted Williams to actors like Jimmy Stewart risked their lives in the air over Germany and Japan. More ordinary men, like my grandfather, volunteered with nothing less on the line when they left families with children, but many claimed they were in part induced by recruiter promises of “free healthcare for life.” Colonel George ‘Bud’ Day, an attorney and Medal of Honor recipient, raised funds from over 23,000 enlisted and officer members of the Greatest Generation to underwrite a lawsuit against the government over promises of free healthcare ‘for life.’ Colonel Day’s lawsuit ultimately failed, however legislators stepped in to give Day and the constituency he represented “about 90%” of what he was seeking from the government via the lawsuit.[ii]

The men who are colloquially, but unofficially known, as “Atomic Veterans” may have numbered as high as 400,000. It’s difficult to know for sure when the government swears the people who participate to secrecy under threat of court-martial and then records are destroyed in subsequent years in fires. The Center for Investigative Reporting produced a long-form piece documenting the continuing attempts of these veterans to receive treatment for illnesses they believe are the direct result of their participation in exercises like Operation Hardtack I, a series of nuclear bomb detonations near Enewetak Atoll in the Pacific Ocean in 1958. Wayne Brooks, along with the rest of the crew aboard the USS De Haven, was repeatedly exposed to nuclear detonations.

The next morning, a countdown blared from the De Haven’s PA system. A nuclear test – code name Koa – was being conducted from a barge in the lagoon of Enewetak Atoll. Its blast would release at least 75 times the power of the bomb that killed more than 130,000 people in Hiroshima, Japan, in 1945.

Brooks, a slender Texan, had enlisted in the Navy a year earlier at 17. That morning, he manned his gun station on deck. He had no special goggles or clothing. He and the other sailors wore long-sleeved shirts and tucked their pant legs into their socks. They did as they had been told, turning away from the blast site and putting their hands over their eyes.

The flash was so bright that even 20 miles from the blast, Brooks, now 75, said, “When you put your hands over your eyes, you saw your bones in your hands and in your fingers.”

…

His story is not unique. In the aftermath of World War II and during the height of the Cold War – between 1946 and 1962 – the U.S. detonated more than 200 above-ground and undersea nuclear bombs. Over three months, Brooks would witness 27 of them.[iii]

Brooks was repeatedly denied benefits for his illnesses over many years as the VA and DoD claimed that there wasn’t enough evidence to support finding a presumption of “service-connection” for his particular health problems. Eventually, after decades of studies – and amid increasing public pressure to acknowledge what had been done to service members – the VA would include a list of conditions considered ‘presumptively’ service-connected. For Wayne Brooks and other veterans like him, however, the intervening years would see thousands or even tens of thousands of possible claimants die, significantly lessening the payments that the government would have to make.

Indeed, any detailed historical look at DoD and VA actions in the aftermath of large batches of veterans returning home and filing claims, reveals a shocking pattern: deny any connection to the claims for as long as possible, when pressed by overwhelming public opinion, the government commits to “studying” the issue, years go by during which large chunks of the cohort die before they ever see a penny, study results eventually trickle in showing correlation between the claimed diseases and government tests conducted on service members, and the VA reluctantly capitulates, with Congress (loudly) committing to ‘make it right’ for these veterans, and then regulations are drafted that narrow the conditions or provide only a small exception to the general tactic of denying benefits.

Lather. Rinse. Repeat.

Agent Orange was a known carcinogen before it was ever used as a defoliant in Vietnam, yet it took decades for the VA to concede that there might be a link between the high rates of various illnesses among those Vietnam veterans who were exposed to it and the toxic chemicals. In many cases, the VA will not budge until a court orders them to. Even after acknowledging the “service connection” for the dioxin in Agent Orange, the VA interpreted the regulations to exclude Navy veterans who served aboard ships in the waters in and around Vietnam.[iv] What is most telling about the decision is its date: January 29, 2019. It took more than 4 decades after the Vietnam War had ended for a court to finally compel the VA to provide benefits to Navy veterans who had served in the waters in and around Vietnam because of court interpretations that use legal doctrines that specifically compel judges to view evidence in a light most favorably to the government – and not its citizens.

From nuclear exposures to mustard gas tests, from dioxin in Agent Orange to pyridostigmine bromide pills during the Gulf War to the anthrax vaccine, troops exposed to known or unknown hazards are sometimes sworn to secrecy, ignored, marginalized after their service is completed, denied benefits, and then have to fight a system that is rigged against them for decades. If they are lucky enough to survive long enough they might eventually get some treatment via the socialized medicine of the VA. This doesn’t even begin to address the quality of the treatment that veterans are subjected to once the government finally lets them in the door.

Lest it seem that I am taking liberties in imputing these motives to VA officials, or stretching the truth, consider this:

In 1977, a veteran made the first-ever VA claim referencing exposure to Agent Orange. By 1993 only 486 of the 39,419 veterans who filed claims had received compensation for Agent Orange-related disabilities. According to a 2015 ProPublica report, the VA did not keep records of Agent Orange-related claims until 2002, but, from 2002 to 2015, more than 650,000 veterans were granted benefits related to exposure to the herbicide.[v]

Secretary of the Department of Veterans Affairs Robert Wilkie was straightforward in public statements about his reasons for fighting the case, specifically citing the cost of extending benefits to additional veterans beyond the narrow interpretation his agency had adopted for judging claimants.

Secretary of the VA Robert Wilkie, and other opponents of the Court of Appeals ruling, contend that there is insufficient evidence connecting Navy veterans who never stepped foot on Vietnamese soil to Agent Orange exposure. In the past, Wilkie has cited the cost of extending care to 50,000 to 70,000 veterans as a reason why the VA denied Blue Water Navy veterans claims of presumptive exposure to Agent Orange.[vi]

This is all in addition to the legal limitations explained in Chapter 4 that the government has already placed on servicemembers’ right to sue under Feres and its progeny. While one changed vote on the high court could overturn Feres, it remains the law, but the DoD may not be anxious to test the vitality of the Stanley and Feres decisions in light of this program’s flaws and the possible exposure. Even were the DoD to win in court, Congress could very well undo such a decision in the face of sufficient public outcry, as it has historically, by subsequently expanding the language of the Federal Tort Claims Act or carving out a specific exception to Feres for such cases.

Another consideration is the possibility that BioPort itself could still be exposed to liability from family members of service members who were harmed. The FTCA allows servicemembers or their estate’s  to sue a government contractor, although there is a ‘government contractor defense’ to such suit – yet another judicial creation to limit government contractor exposure.[vii] BioPort, however, with its atrocious history, is in no position to meet the requirements of even that deferential government contractor defense.[viii] Neither is the DoD in a position to help as it appears that the DoD intentionally ignored what it knew for some time: that the anthrax vaccine was not licensed for the use to which the DoD was putting it.

The FDA is not anxious to have to answer in court, either. It would likely not want to have to defend its actions, specifically why it never stepped in to regulate BioPort, why it allowed expired lots released, why it allowed the DoD to operate “on site,” why it deferred to DoD interpretations of the scope of a license, and the list goes on. The FDA’s own decisions in disciplining previous manufacturers may come back to haunt it. Even under an abuse of discretion standard, its actions are less than pristine.

One final point to be made is that the VA and DoD engage in this pattern of behavior in all cases involving veterans benefits, not just injuries and service connection for disabilities, but even for things like Post 9/11 education benefits. In some cases, the VA gives the benefits and then subsequently seeks to claw them back by re-interpreting regulations to exclude veterans and their families who have already received them. And then engages in aggressive collection practices, garnishing tax returns and turning children of veterans into debtors overnight.

Kelli Hower was six months pregnant with her first child last spring when the phone call came.

At first, the Michigan woman thought it was a scammer. But it turned out to be all too real.

The caller was a debt collector, on contract with the U.S. Treasury Department. And he had bad news: Hower owed the federal government $12,000 for college tuition payments and living expenses she’d received through her veteran father’s benefits under the Post-9/11 GI Bill.

Hower, 30, couldn’t believe it. To start, those were benefits she’d used years ago. And her father Bruce Coxworth, 57, of Swartz Creek, Michigan, had earned them. He’d served 22-1/2 years as a military police officer with the Army National Guard, with active-duty assignments that took him far from home.

“They said, ‘You owe the federal government $12,000 — and we need it now,’” Hower says. “I started crying. I said, ‘I never got any letters, so what are you talking about?’”

Hower and her father are among more than a dozen families who contacted the Chicago Sun-Times after a story Nov. 10 on military families hit with hefty college bills they were promised would be covered by the government under the Post-9/11 GI Bill.[ix]

In the end, however, the song always seems to remain the same for veterans and their families: broken promises, broken bodies, and bureaucratic indifference.

Endnotes

[i] “Spare a Thought for Veterans of the American Revolution,” Jay Cost, National Review, Nov. 13, 2017, available at https://www.nationalreview.com/2017/11/american-revolutionary-war-veterans-deserve-thanks-remembrance/

[ii] See “Supreme Court rejects military retirees’ appeal in health-care lawsuit,” by Tom Philpott, Kitsap Sun, June 11, 2003. https://products.kitsapsun.com/archive/2003/06-11/172849_supreme_court_rejects_military_.html

[iii] https://www.revealnews.org/article/us-veterans-in-secretive-nuclear-tests-still-fighting-for-recognition/

[iv] See, e.g., Procopio v. Wilkie, Fed. Cir., decided Jan 29, 2019. https://psmag.com/news/court-of-appeals-rules-in-favor-of-blue-water-vietnam-veterans

[v] “The Navy Is Finally Being Forced to Pay for Navy Veterans Exposure to Agent Orange,” Christopher Jones, The Pacific Standard, Feb. 1, 2019. https://psmag.com/news/court-of-appeals-rules-in-favor-of-blue-water-vietnam-veterans

[vi] Id. See also “Charged by Win in Agent Orange Case, veterans groups vow to press on,” The Houston Chronicle, Jan. 30, 2019. https://www.houstonchronicle.com/news/politics/texas/article/Blue-Water-Navy-veterans-from-Vietnam-era-13573428.php

[vii] This government contractor immunity was created by the Supreme Court in a case called Boyles v. United Technologies, which involved the crash of a Marine CH-53 helicopter off the coast of Virginia.

[viii] This government contractor immunity was created by the Supreme Court in a case called Boyles v. United Technologies, which involved the crash of a Marine CH-53 helicopter off the coast of Virginia.

[ix] https://chicago.suntimes.com/2019/11/22/20975706/post-911-gi-bill-military-snafu-mistakes-college-tuition-military-veterans-student-debt; See also “GI Bill college help came for one vet’s family but others still dealing with military’s broken promises,” Stephanie Zimmerman, Dec. 20, 2019