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CUE regarding COD 2011 Admin Decision

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hesselgraverobber

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Hi there. First time posting. Been lurking for a while, reading up on what I thought was relevant to my claim. I’ve found the CUE section here to be very helpful so far and I’m excited at the prospect of finally figuring out what to do about my claim. Everyone I’ve spoken to thus far has been … well, they just don’t care about it as much as I do obviously… which translates into them not knowing what the hell they’re talking about and ends with them looking at me like I have two heads. 

 

 

Here are the facts (Dates are redacted/ non-specifc for privacy.):

 

  1. I enlisted in 2005 for 4 years with an original discharge date of March 2009.
  2. While on my first deployment, in 2007, I re-enlisted for 6 years and received a new discharge date of 2013. I also received a DD 256- Certificate of Honorable Discharge. 
  3. I was discharged in 2010 with an UOTH conditions discharge - Chapter 10 - In lieu of trial by court martial for misconduct that began in July 2009 during my 2nd deployment. 
  4. One month after I separated, I went to my local VA and was told I was ineligible and to submit a claim to trigger a character of discharge review. I filed a claim that same day and went home rather upset as it was my understanding that I had “vested” my benefits by re-enlisting and really needed help for PTSD that was combat related stemming from my first deployment. 
  5. In 2011, my claim was denied due to an admin decision that my entire service from 2005-2010 was  Dishonorable for VA purposes. There was no mention of my first term of service at all. The reasons and bases says that I enlisted in 2005 with a discharge date of 2010, which is just plain untrue. 
  6. My DD214 states in block 18 Remarks: “CONTINUOUS HONORABLE ACTIVE SERVICE: 200503XX-2007XXXX // IMMEDIATE REENLISTMENTS THIS PERIOD - -  2007XXXX-2010XXXX // (DELETED) // SERVED IN A DESIGNATED IMMINENT DANGER PAY AREA// SERVICE IN IRAQ 2006XXXX-2007XXXX // SERVICE IN IRAQ 2008XXXX-2009XXXX // (DELETED) // MEMBER HAS COMPLETED FIRST FULL TERM OF SERVICE // NOTHING FOLLOWS
  7. I  was able to use my Post 9-11/ GI Bill at a rate of 80% without any problems. 

 

 

  • This is a CUE right?
  • How do I go about wording this and on what form? 
  • I would like my effective date to be the day after I separated, and I believe that I’m entitled to that. Please confirm? 
  • Since my claim was stopped due to the Admin Decision, I wasn't given a C&P exam or rated for the PTSD compensation I applied for — can I submit new evidence for my PTSD, along with the CUE claim? Or will that constitute new evidence and material to re-open the claim? 
  • I would like to do it the best way to make the effective date the earliest it can possibly be. 
  • I expect the CUE to cover just that first term of service and the combat medic related PTSD that I acquired during my first deployment. However, I also now have new evidence related to my second term of service, in which I received an OTH discharge, to report that would significantly change the outcome of that COD as well. The new evidence is my final admittance to myself and reality in general that I was raped during my second deployment. I did not tell my chain of command at the time, although I did tell my then husband at the time and my mother and current husband know now. This rape was what caused the misconduct for which I was separated in 2010. The rape also caused a lot of damage to my already damaged psyche and I just fell apart. I’m hesitant to add this information at this point with the CUE on the table, because I don’t want it to mean that I wont get the earlier effective date for the combat medic related PTSD. Is now the time to report that information as well? I’ve been seeing therapists for years about both the combat and MST related PTSD. I just don’t know when or how to submit/organize this. 

 

thank you, any info at all helps. 

 

-HG 

 

fuckin hooah 

 
Edited by hesselgraverobber
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1 hour ago, broncovet said:

Did you apply for a "discharge upgrade", and if so, what were the results?  

CUE is not a substitute for the filing of a NOD if you dont do file the NOD in a year.  

The first step would be to apply for the discharge upgrade, and, if this has been denied, you should consider appealing it.  

Also, when was the "Hagel Memo" in relation to the time you applied  for a discharge upgrade?  It may be something as simiple as you asking for a reconsideration per the Hagel Memo.  Did you contact the Yale Law school about your issue, since it may well apply to you?  

I didn't apply for a discharge upgrade yet. I don't think they followed their own directives of due process in my original claim. They sent the decision to an address I wasn't at and then received the same mail returned to them, then quit trying to contact me and closed the claim before a year was up. They had my home of record, but didn't send anything there. I applied for and was awarded VA Benefits in 2011, the same year my claim was denied (yet I didn't know). Through my education application, they had my current address and didn't send me anything about my claim. 

I think the Hagel memo applies full and well to my second term of service, but not to my first. I am already entitled to VA Benefits, but no one is reading the regulations or my DD214 correctly. I have PTSD from my first term of service and want to be treated and receive compensation while I'm working on "Hagel"-ing my second term of service and applying for an upgrade for that period of time. 

For now, I'm looking for the fastest route to start receiving compensation while also preserving my contentions about the way my claim was mishandled the first time around. I am also interested in fighting the longer fight, but for now, it's very difficult to unpack everything that happened during my second term of service/deployment. What do you think? 

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I have not seen your file, but if the VA thinks you dont meet the required discharge eligibility, you are going down a rathole to nowhere until you get that discharge upgraded.   The decision maker can/does/will rely on information available to him at the time, and, if that is incorrect, the burden is on you to have it changed.  To get errors from your record fixed, you should try this, first:

1.579 Amendment of records.

(a) Any individual may request amendment of any Department of Veterans Affairs recordpertaining to him or her. Not later than 10 days (excluding Saturdays, Sundays, and legal public holidays) after the date or receipt of such request, the Department of Veterans Affairs will acknowledge in writing such receipt. The Department of Veterans Affairs will complete the review to amend or correct a record as soon as reasonably possible, normally within 30 days from the receipt of the request (excluding Saturdays, Sundays, and legal public holidays) unless unusual circumstances preclude completing action within that time. The Department of Veterans Affairs will promptly either:

(1) Correct any part thereof which the individual believes is not accurate, relevant, timely or complete; or

(2) Inform the individual of the Department of Veterans Affairs refusal to amend therecord in accordance with his or her request, the reason for the refusal, the procedures by which the individual may request a review of that refusal by the Secretary or designee, and the name and address of such official.

(Authority: 5 U.S.C. 552a(d)(2))

(b) The administration or staff office having jurisdiction over the records involved will establish procedures for reviewing a request from an individual concerning the amendment of any record or information pertaining to the individual, for making a determination on therequest, for an appeal within the Department of Veterans Affairs of an initial adverse Department of Veterans Affairs determination, and for whatever additional means may be necessary for each individual to be able to exercise fully, his or her right under 5 U.S.C. 552a.

(1) Headquarters officials designated as responsible for the amendment of records or information located in Central Office and under their jurisdiction include, but are not limited to: Secretary; Deputy Secretary, as well as other appropriate individualsresponsible for the conduct of business within the various Department of Veterans Affairs administrations and staff offices. These officials will determine and advise the requesterof the identifying information required to relate the request to the appropriate record, evaluate and grant or deny requests to amend, review initial adverse determinations upon request, and assist requesters desiring to amend or appeal initial adverse determinations or learn further of the provisions for judicial review.

(2) The following field officials are designated as responsible for the amendment ofrecords or information located in facilities under their jurisdiction, as appropriate: The Director of each Center, Domiciliary, Medical Center, Outpatient Clinic, Regional Office, Supply Depot, and Regional Counsels. These officials will function in the same manner at field facilities as that specified in the preceding subparagraph for headquarters officials in Central Office.

(Authority: 5 U.S.C. 552a(f)(4))

(c) Any individual who disagrees with the Department of Veterans Affairs refusal to amend his or her record may request a review of such refusal. The Department of Veterans Affairs will complete such review not later than 30 days (excluding Saturdays, Sundays, and legal public holidays) from the date on which the individual request such review and make a final determination unless, for good cause shown, the Secretary extends such 30-day period. If, after review, the Secretary or designee also refuses to amend the record in accordance with the request the individual will be advised of the right to file with the Department of Veterans Affairs a concise statement setting forth the reasons for his or her disagreement with the Department of Veterans Affairs refusal and also advise of the provisions for judicial review of the reviewing official's determination. (5 U.S.C. 552a(g)(1)(A))

It may be more complicate than that if this is a discharge upgrade.  Heck if you want the fastet method, then do both at once...the discharge upgrade and the amendment of records.  

If you dont have a copy of your cfile, get one.  Only then, would anyone know if this is a "CUE" or not...its possible your file was intertwined with another Vetrans.  If it is, yours would not be the first.  

There are 3 common things Vetarans who win benefits almost univerallly have in common:

1.  They apply and give VA everyithing t they ask or request.  

2.  They study the regulations or have someone who knows study them.

3.  They keep on appealing until they win.  

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19 hours ago, hesselgraverobber said:

 

 

 

On 8/16/2016 at 8:44 AM, Berta said:

I think one problem here is that the VA might have considered the re enlistment as a 'continuous' period of service,meaning they are not considering the first period of service as HD....

But "I  was able to use my Post 9-11/ GI Bill at a rate of 80% without any problems." 

This is very problematic:

  1. "In 2011, my claim was denied due to an admin decision that my entire service from 2005-2010 was  Dishonorable for VA purposes. There was no mention of my first term of service at all. The reasons and bases says that I enlisted in 2005 with a discharge date of 2010, which is just plain untrue. "I will try to find something at the BVA on this, because you re upped while still within the first period of service..

 

When did the COD decision come? Did they give you full appeal rights?

Did you act on appealing this decision within the first year after it arrived?

The Hagel Memo has changed situations like this for some veterans....but not enough and I believe there is legislation in Congress to bolster the Memo's guidelines up.

There is plenty under a google search on the Hagel Memo.

Did the VA completely deny you VA health care?

Lots to read here but it all explains the Hagel Memo

 

http://community.hadit.com/topic/59175-yale-law-school-vets-clinic-re-oth-vets/

(this link is about a radio show I did with Jerrel Cook and an attorney from the Yale Law School Clinic on the Hagel Memo....I will try to find the show in our archives here) 

https://vetlawandbenefits.org/2015/12/07/achieving-justice-for-veterans-with-pstd-and-bad-paper-some-progress-but-a-long-way-to-go/

https://ftwvetnews.wordpress.com/2016/03/09/dod-improves-discharge-upgrade-process-for-veterans-with-ptsd/

I am concerned about the 2011 date of that decision and what came after that.

It seems you do have New and Material evidence, to re open the claim with..

but hopefully others will opine on this as well..

I am under the impression that a bad paper discharge , with a separate Honorable discharge a DD 214 ,not a 256, even if only one day occurred between the first discharge and the additional new enlistment ,is what can make the initial period of service, one that warrants a HD, overcome any bad paper from the second , separate period of service. 

 

 

 

Berta, thank you for your reply! Yes, they are viewing my service as continuous, however, https://www.swords-to-plowshares.org/guides/b2b says that doesn't matter and I should be able to have that first term recognized as honorable. 

I

 

 

Was this a case of being AWOL due to personal circumstances?

If so did you clearly explain those circumstances?

The decision is redacted so we do not know exactly why they denied the claim.

Now I am thinking that it was not involving the service period at all.

You have some very nice awards on the DD 214 that you should sure be proud of, to include the Combat Medic Badge.

But, without appealing it, (although you could make the point that you did NOT receive the decision within the appeal period) you would have to re open this claim with new and material evidence.

"I’ve been seeing therapists for years about both the combat and MST related PTSD"

Those records would be New and Material Evidence. Copies of them could be submitted with the re opened claim.

Swords and Plowshares is an excellent organization but I dont know if they provide claims representation.

Maybe there is contact info at their site that could help you.

Or if I were you I would contact the Vet rep org that initially represented you on this ,if you had a rep, and inform them of this new and material medical evidence and the years of therapy records.

A vet with a DD 214 with many great awards on it,and yet with this type of discharge ,does not seek that kind of therapy unless something very traumatic happened to them in service.

Do you have your complete SMRs and 201 Personnel file from the military?

We have MST vets here too and I recall one member had their Character of Service discharge changed years ago and maybe there are more here too.

 

 

 

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http://www.bva.va.gov/   they have a search area on the right hand side of the Decision page.

I searched for Character of Discharge

and put rape into the second search area.

Many decisions there. This was a good one :

"ORDER

 

The character of the Veteran's discharge for the period from September 9, 1979 through May 14, 1982 is not a bar to VA benefits; to this extent, the appeal is granted.

 

Entitlement to service connection for an acquired psychiatric disorder due to military sexual trauma is granted.

http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp15/Files5/1541261.txt

 

 

 

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