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anglersd

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About anglersd

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  • Service Connected Disability
    60%
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    Army
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    Everything fishing & Camping

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  1. I've also got some other stuff uploaded of what Berta and everyone else was wanting to see, Just a brief; upon entrance into the ER it states "slight odor of alcohol" and some 3 + hours later it states "strong odor of alcohol" "slight odor of alcohol" was left out in the reasons and basis and LOD/WM determination. the "BAC of 0.09%" isn't noted anywhere in my medical records, just he 93mg/dl and I question that. they go into the spheel about transfers and upgrades and blah blah blah and how I wasn't acting in any type of support for the military. No matter how they twist n turn, bump n grind, push n pull the fact remains that on my upgraded discharge it states "ACTIVE DUTY" and only the service dept can make that determination. Not the VA!! then they mention that I was "legally intoxicated" which really P**sed me off. No I was not, refer to HB1034 I uploaded and it'll tell you .10 is legally intoxicated in 83. I was never charged, tried or convicted of this crime they are accusing me of when they say "legally intoxicated". You'll love my response in my disagreement on this matter. Hope this helps. Let me be clear on some things, IF you see anything in here that needs to be redacted please let me know and I will correct it. I want these to remain here for as long as this site is up and running because who knows, another veteran could run across the same or simular situation and will know how to argue or act on this. FYI, I've been working my cases for the last 20+ years and only had the VSO,NSO submit my info. I did all the leg work so I kind of know what I'm talkin about when I do what I do. thanks for understanding!!
  2. Buck52, No, the dd214 I uploaded is my corrected one and is correct. the old dd214 I won't upload because I don't want it out there. I uploaded a bit to show you. The ABCMR issued me the upgraded DD214, on the signature portion where it says wynima smith's signature it says ABCMR. I uploaded the ABCMR transcript of what happen in that hearing. if you haven't read it, please do so as it explains it. whoever was in charge of removing said OTH discharge dd214 didn't remove it and it remained in the file. Everything pertaining to drugs was to be removed. ABCMR has authority to remove the documents, ARB does not authority to remove documents. The dd215 isn't the form used when the ABCMR makes that correction. It would be if the ARB was. the 215 only changes minor inconsistencies like address, name n such This is where I think what happen is VBA is going off chapter 10 U.S.C. 1553 whereas the ARB corrected it and does NOT have authority to remove it. The VBA should be going by chapter 10 U.S.C. 1552 whereas the ABCMR DOES have authority to remove it. They are the ones who corrected it. The NPRC can only change certain things on the 214 and doesn't include the character of discharge. Only the ABCMR has that authority. Subsection 3.12 in the CFR outlines a lot of this. This is where I'm getting this information, Prec. 10-96 is what you'll have to see to know what I'm talking about, https://www.va.gov/ogc/opinions/1996precedentopinions.asp A little bit of the prec. citation it states. The Committee concurs with the VA regarding the power and authority of the Board for Corrections of Military Records which, like a special act of Congress, can alter the individual’s service record in upgrading a discharge. . . . However, the Committee does not agree that the actions taken by the discharge review boards carry the same weight since the discharge review boards do not have the power and/or authority to alter service records. In other words, this special little act of "congress" called the ABCMR altered my dd214. Not the ARB. I believe the ARB was suppose to remove it, I could be wrong never the less it was left in there by mistake. Buck52, trust me I was at that point of contacting the OIG. right now I have to wait on a response back from senator rounds who is helping me once again to get this corrected. Senator Thune helped me the first time. I uploaded those docs. Let me show you on these two dd214. the voided one is the one that should have been removed. the other is the good one.
  3. Buck52, You might be slightly misunderstanding what I'm dealing with, let me clarrify for you! The DOD already corrected this injustice in 86 but because my old DD214 was left in the file, by mistake, the VBA is using it against me. My OTH was removed and is now honorable per the ABCMR and Sec. of the Army. This rater I'm speaking of was a manager, now he's the director at the VARO. Yes I do have all the emails between him and I and yes I did submit them into evidence showing evidence of bias. In my 25 page rebuttal for appeal outlines this, I will upload this as well. So here's the thing, when the VBA made an administrative decision on LOD/WM they were influenced by my old DD214 in doing so. the M21 outlines the procedures of when a LOD/WM has to be made. This is where I am going to have to upload some more docs to show you. But the cause of this accident was on her. It's a bit confusing and personally I'll have to get my ducks in a row on this matter if I have a conference with a more experienced DRO review in the AMP program. I'll be arguing it. they should not have made that determination. But also they left out relevant facts in that decision that were of record in order to make the LOD/WM determination. Come hell or high water, I will get this decision on here today. I go to the Vet center to put it in PDF format, then is when I will get this on here to show you. https://www.knowva.ebenefits.va.gov/system/templates/selfservice/va_ssnew/help/customer/locale/en-US/portal/554400000001018/content/554400000014222/M21-1-Part-III-Subpart-v-Chapter-1-Section-D-Willful-Misconduct-and-Line-of-Duty-LOD?query=m21-1 part iii subpart v chapter 1 section d willful misconduct and line of duty lod#2 My point on this is, I was never charged with alcohol or convicted. So when looking at the m21 there are questions asked of when to make that LOD/WM determination. when they decided to make that determination, a higher up official has to sign off on it. I believe it was this rating manager who signed off on it. This document shows you who was at fault of this accident, granted it says nothing about my skull fracture, my admittance into the hospital shows otherwise. I don't know who filled this out and of course the original police report is missing along with some other documents of relevancy. BTW, I did more than fall off my motorcycle, I flew over my handlebars, her vehicle and did a head plant on the curb, knocking me out cold. Fracturing my skull, busting my ankle, no helmet! I was traveling the posted speed limit of 30mph and had no time for any other reaction.
  4. Berta, part of the reason why I was so persistent in not filling out the 149 was the simple fact it would have been fruitless. NPRC cannot change the character of discharge, only the DOD can do that by recommendations and orders from the ABCMR and the SOTA. The other thing I want to point out is VA is not wanting to remove these documents even though they were left in there. They say they can't because these records are on loan from the DOD. That's where the issue lies. My understanding now tells me the dept of the Army is contacting the NPRC to have the VA remove this old 214. Still waiting on that from constituent service of Rounds office. Believe or not, it was the head rater at the VA I butted heads with years ago on this issue and he did nothing but nitpick everything, he even asked me If I had a letter from DOD telling me If had an upgrade, I said, "yea, it's called a dd214, look in box 24 where it says honorable" "chapter 10 U.S.C. 1552 with secretarial authority" But also the ABCMR transcripts. Both you and I know the DOD doesn't send out personal letters when being discharged. That's what the dd214 does. unfortunately he became a director at the VARO. This is probably why I got a bad decision in the first place is because of him. I mentioned complete bias in my rebuttal along with evidence of our email exchanges proving his ignorants. when they made an LOD/WM administrative decision it had to be signed off by upper management according to the M21 and I believe it was this head rater at the time who signed off on it. Let me say this and I believe this whole heartedly, they made a decision based on chapter 10 U.S.C. 1553 where mine was 1552. 1553 has something to do with underhonorable conditions and 1552 is honorable where the DVA is bound by that. This tells me they are still using my old 214, lying to me and rounds office saying they are not using it. §3.12 Character of discharge. outlines quite a bit of this confusion, (e) is the only thing they should be looking at when they see my dd214. (e) An honorable discharge or discharge under honorable conditions issued through a board for correction of records established under authority of 10 U.S.C. 1552 is final and conclusive on the Department of Veterans Affairs. The action of the board sets aside any prior bar to benefits imposed under paragraph (c) or (d) of this section. Anyhow, I'll get this decision scanned and uploaded soon, thanks again!!
  5. Berta, I found long ago this citation from CAVC, Spencer v West which deals with military control and the ABCMR. There was a OGC precedent opinion which has since been withdrawn, VAOGC 13-94. This case may have been the reason why it was withdrawn and no longer valid. I only assume so!! http://search.uscourts.cavc.gov/isysquery/5b9b9a74-e6e2-4632-929b-b6fc56d58771/2/doc/ Also, thanks for that reminder, I opted into the new AMP program for a higher review (not sure it was a good move or not) and I can use this information if they schedule me for a phone conference. It deals with "active service" and "under military control" I don't know if this citation is precedent or not, but a lot of information in it is precedent opinion. Very close to my case!! But also if you look closely at my dd214 that it was in accordance with 10 U.S.C. 1552 with secretarial authority. BTW, CAVC kind of gives the Secretary the smacketh down in this ruling. funny stuff!
  6. Let me stand corrected, it was sent over for upgrading in 85 and corrected in 86. when they say "any inconvenience this has caused". Believe when I say this has caused tremendous grief for me by leaving this in there. Read Giles and Walters and you'll understand the grief! dispicable is what I call it!!
  7. Broncovet: Thanks for that link and information you gave. I'll give it a read and keep it in mind going forward. I guess I don't understand your " .08 BAC = .10 BAC" can you elaborate? Broncovet, I understand the EAJA. I've had to take my previous cases to the CAVC, they paid big bucks on one of my cases, 15,000 to be approx. what doesn't make sense that if they take the position they take all the time a veteran would lose constantly. I will fight them with persistance, no doubt about that! They violated some rights in my last case and they didn't want to consent to a JR, I told my atty. "fine, take it to the judges and show them". They agreed on the JR but didn't want to agree on all of the violations. One of them was the ALJ brought up the chapter 9 illegal discharge that was suppose to be deleted from my file. That's what prompted me to pursue this matter.   Buck52: Actually, believe it or not, my discharge was automatically upgraded in 85 due to an administrative discharge that was ruled by the memorandum opinion of Judge Parker Barrington. Giles V Secretary of the Army, 1980. this is precisely my case. In my hearing transcripts it outlines what was of record, including the missing chain of custody records of this urinalysis testing they did. 2 tests were taken at 2 different times. Both those times did I ever smoke weed for them to come up dirty like it did. So, it does anger me to no end that they pulled this dirty trick on me. I call it now a conspiracy on the part of my section chief and the commander. Documents I found in my record with dates coincide to exactly what they were up to. what they didn't realize is I came from a unit I asked to be transferred out of because of an attack on my person, things that still affect me today. I try not to think about it. This ruling was in 1980 and it appears they continued this practice of administravelly discharging veterans in the same manner. I do know they did this to thousands of veterans. https://openjurist.org/627/f2d/554/giles-v-secretary-of-army   https://www.courtlistener.com/opinion/1507825/walters-v-secretary-of-defense/ Bottom line is in both these citations, btw, interesting read!!   They did upgrade my discharge and it was an orginization who assisted with it and I believe it was NVLSP. One of the founding attorneys was fighting these cases back in the day. I've contacted them by email but got no response back. None the less, I thank whoever it was for there efforts in a successful outcome.   Berta: With my congressional help, 2 of them. they wanted me to fill out the 149 to send in to have it corrected. I declined to do so. My reason? They already corrected this in 85 through the ABCMR, an exhaustion of all administrative procedures to get to them. I wasn't about to give them a second bite of the apple to potentially change it through this process. That could have happened, Have a read on the giles case where it outlines the army could go back and look at the full record and change it to misconduct type of discharge. not happening!! So the dd215 is useless to me in a sense they've already gave me a corrected dd214 ordered by the ABCMR and the secretary of the Army. when I get the chance I will redact personal information and upload my dd214 and the hearing transcript that took place and the approval from the SOTA documents. Including all the other stuff you're asking to see.   Per your other post: Yes, totally understand what you're saying in all of this. Actually I've been a lurker on this site for quite some time and I know a lot about your situation. I've read quite a bit of your advice and I find you very admirable in your knowledge and take it to heart. There is no doubt this site is the best in VSO assistance. I've been at 60% many years with other conditions I have, this particular one is a brand new case brought up against the DVA, It isn't an increase from my conditions I have. I don't think that was the proceedure back in the day for the dd215 according to my research on that. I think they issued a corrected 214.   I loaded up some stuff for you to have a look. Enjoy the read! Take notice of signatures, but also it says I applied for an upgrade. Wynima Smith is the signature of both the application and on my DD214. I didn't even know this existed which leads me to believe this organizations founder applied for me or the Army filed this on there own motion. If you see anything that needs to be redacted, let me know and I'll correct it. the last decision will be coming Berta, I don't have it on my computer yet. BTW, those proceedings were NOT even placed in my file, I had to hunt them down. thanks a bunch you guys for this information!!
  8. I recieved my denial letter here recently and I was floored by there reasons and bases for denying my claim. They left out relevant facts and twisted everything to fit there narrative for there denial. When I contacted my DAV, NSO he told me the "adjudicators are under a different set of rules". I asked him aren't they suppose to be following the M21 manual and he asked me where I was reading the manual and I told him online at the department of veterans affairs. He says you can't go by that nor do they go by that! What do they have it online for then? relevant facts were left out on the approximate cause of this accident I was in. She turned in front of me. They claim I was legally intoxicated. Upon entrance to the emergency room nurse stated "slight odor of alcohol", 3+ hours later another nurse states "strong odor of alcohol". 93mg/dl according to the blood work but no actual BAC content noted anywhere. they say it was .09%, I don't argue with that except it isn't stated anywhere in my records of the such. This accident was in 83 and under SD law .10% was the limit under HB 1034p. You'll notice in the bill I didn't even rise to the presumptive standards back then. What law do they have to follow. I was discharged in July of 83 under honorable conditions and it was upgraded in 85 by the ABCMR to honorable. my original release date would have been Oct. of 83, the ABCMR gave me back my original release date. this accident was in sept. of 83. they state in there reasons and basis the outline of my correction of records and basically told me I wasn't under military control at the time. My DD214 says I was active duty at the time per the ABCMR correction. I know they are messing with me on this issue and I'm arguing that in my appeal. My old DD214 was to be deleted from the file but was left in there by mistake and I'm just now getting this cleared up with congressional assistance. I feel the VA is using my old DD214, that isn't suppose to be there, in order to make and determination of LOD/WM. No LOD/WM was made back then and I know the VA isn't the proper service dept. to make that decision, only the DOA is. Active duty: Citing Cahall v Brown,7 Vet.app. 232,237 (1994). "Service department findings are binding on VA purposes of establishing service in the U.S. Armed Forces. "Duro v Derwinski, 2 Vet. App. 530 532 (1992); see also Soria v Brown, 118F.3d 747, 749 (Fed. Cir. 1997) (noting that "VA has long treated the serivcve department's decision on [a claimants verified service] as conclusive and binding," and finding "no error in that judgement"). I understand all the LOD/WM which is relative to Marks v Mcdonald memorandum decision, Thanks to Asknod for that useful gem of information!! Read that decision here! https://asknod.org/2014/09/18/cavc-marks-v-mcdonald-line-of-duty-and-willful-misconduct/ Bottom line, Are adjudictors under a different set of rules for following the law? I don't get it!!
  9. Has there been any update on your case jfrei? I'm kind of in the same boat and wondering where your at with this.
  10. I'm having these same issues as well and I've used MHV to contact my PCP thru whoever it is that plays the intermediary. They were also forwarded to the Pat. Ad. at the same time and I've never had such a quick response from my PCP ever before. I'm so sick of it you can't imagine. From now on I review those records when they become available and if there is anything and I mean anything in there that we didn't talk about and doesn't smell of an opinion, they're hearing from me and the word "complaint" is in the vocabulary when I contact them. I don't give a rats behind if they call me a complainer or whiner, I'll just call them a liar!
  11. Don't know how "crack addiction" got into this but what ever! Continuity of symptoms can be proven with lay statements, witnesses, over the counter meds. Just have to be careful on how it is worded in the statements as to not come off as you're some sort of a Dr unless you have that experience and degree. You just have to report things related the SC without giving any diagnosis. Lay statements work cuz I've used them and was granted. Good luck
  12. The costs of hiring an atty. for a claim will cost to much. Get some free help with a Vet rep. you do most of the research and present it to him and he'll give you good advice and tell you what is needed to win. I'll tell ya that hearing loss is 0% compensable and they'll give you the audiology tests and give you hearing aids. That's what they did with me anyway. With the foot injury could be as low as a denial of the claim to 10% up to who knows and dependent on the severity. Good luck and thanks for your service!!
  13. I think there was a misinterpretation of someone calling someone a cowboy and certainly don't want to speak for anyone. I read this as Asknod has someone on his show named cowboy. But anyhow, RUReady this is by FAR the best vet site to getting help! I've been to the other so called site and that was a joke! Don't get offended just b/c you assumed they called you a cowboy. Hell you can call me cowboy all day long and wouldn't give 2 shits. I would get pissed if you called me late for dinner and my hot meal turned cold. Just read and if you need to take notes, do like I do and put it on word or whatever program you have. This has helped me tremendously! Research the question you have in your head at that time and try to find the answer to it in all these posts. Sincerely!! Thank you for your service and good luck to you!! Asknod I'm seriously gonna have to call in once I get a schedule of when you go live to see if you talk like a cowboy to, LOL! Love reading your articles, BTW, you called me sir on your contact page and don't ever call me that again!
  14. Looks like the same advice someone would give out on another vet help website I just deleted myself from b/c of Debbie downer advice or rudeness! I'll try to stay positive on this one though!
  15. Bwahaha, thanks Asknod for that link! You've got a sense of humor like no other! BOOKMARKED IT!!
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