d1ray

I have gotten past the discharge upgrade. It was upgraded to General (Under Honorable Conditions). I'm currently rated at 10% for tinnitus and I have other claims for PTSD, osteoarthritis in knees degenerative arthritis in my back among other things. What I'm trying to get clarity on is what constitutes a claim. 38 CFR 3.1 38 CFR 3.1(p) defines Claim means a written or electronic communication requesting a determination of entitlement or evidencing a belief in entitlement, to a specific benefit under the laws administered by the Department of Veterans Affairs submitted on an application form prescribed by the Secretary. (See scope of claim, § 3.155(d)(2); complete claim, § 3.160(a); issues within a claim, § 3.151(c)). This literally means any claim for a BENEFIT that is administered under the VA. The case I mentioned of D'Amico v West, his initial claim was for a VA Home Loan. in another case from an appeal to the Veterans Board of Appeals (Citation Nr: 1319148), it states; Although, through no fault of the Veteran's, the current claims file is incomplete, the evidence available in the rebuilt file does reflect that the Veteran filed a claim for VA benefits within one year of separation from service, as evidenced by the May 1979 letter from the Waco RO indicating that the Veteran had filed a claim for "unemployment compensation" based on his military service. This claim for unemployment compensation was, presumably, a claim for nonservice-connected pension. While the actual claim which resulted in the sending of the May 1979 letter is not of record in the rebuilt folder, the Board points out that a claim for pension may be considered to be a claim for compensation. 38 C.F.R. ง 3.151(a). The Board does not have the benefit of reviewing the claim filed within one year of separation from service to determine what disabilities were identified by the Veteran; however, it is reasonable to conclude that the Veteran would have been seeking compensation based on his seizure disorder and hearing loss which were incurred in service and noted on his April 1979 separation examination. Accordingly, and in consideration of the heightened duty to consider the applicability of the benefit of the doubt rule, the Board finds that the Veteran filed an initial claim for service connection for a seizure disorder and hearing loss prior to May 1979. A specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C.A. ง 5101(a); 38 C.F.R. ง 3.151(a). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his duly-authorized representative, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered as filed as of the date of receipt of the informal claim. 38 C.F.R. ง 3.155(a). In sum, the initial claim does not have to be a claim for disability as I understand this. It just has to be a claim for a benefit that is administered by the VA. Is that correct?

My error

I could not get them to do another COD determination for me. They did one in 1973 and 1988 (which was a rubber stamp of the first one). In 2003, they just referred to those. In 2013 after my diagnosis, they still would not reconsider even though I had proof of my stressor from active duty. It was then that I filed for the upgrade with the BCNR. Along with two diagnoses under DSM IV and DSM V and a narrative of my insanity at the time of commission of the acts that lead to my discharge, I was able to get an upgrade to Under Honorable Conditions with an advisory opinion from the BCNR concurring. As far as date of entitlement, I'm hoping for the day after separation since I did file a claim that required a COD decision with the first year. My stressor is in my medical record since I was treated for a STD. When they made the COD determination, they never requested my STR as they are supposed to. That makes this record related to my claimed in-service event under 38 cfr 3.156(c)(1)(i) and the date of entitlement is to be governed by 3.156(c)(3).

I have read that and I have gotten an upgrade through the BCNR. On there it states that that "VA does not consider character of discharge until it receives a claim for benefits. A claim for benefits may be in the form of a request for medical treatment received at a VA medical facility, or it may be an application for compensation or pension received at a VA regional office. VA cannot make a final decision regarding entitlement to benefits until the character-of-discharge issue is resolved." My first Administrative Decision was the result of filing for Unemployment Compensation at the VA office in San Fran. On that form, I was asked if my separation was because of an injury or illness. I answered yes. This was done one week after separation. A few months later, I filed for educational benefits. Now that I have been upgraded and have SC for something else, I'm trying for the earliest effective date. I believe that should be the day following separation.

Thank you!!! I filed for educational benefits within 3 months of discharge. An Administrative Decision was made that I was barred for 3.12(d)(4) Willful and persistent misconduct. I have now filed for PTSD and there is direct connection to service. I believe my effective date should be the day after separation based on 3.156(c)(1). Is that correct?

In 38 CFR 3.1, claim is defined as "Claim means a written or electronic communication requesting a determination of entitlement or evidencing a belief in entitlement, to a specific benefit under the laws administered by the Department of Veterans Affairs submitted on an application form prescribed by the Secretary.". It goes on to define Initial claim as "(1) Initial claim. An initial claim is any complete claim, other than a supplemental claim, for a benefit on a form prescribed by the Secretary. The first initial claim for one or more benefits received by VA is further defined as an original claim." If as in D'Amico v West, a claim is filed, and the discharge is OTH does it count as the original claim when a later claim is filed for SC disability and the discharge has been upgraded based on insanity at the time of commission of the act leading to discharge?

The above is a proposed rule change by the VA. The actual document can be found here https://beta.regulations.gov/document/VA-2020-VBA-0018-0001 When these changes are 'Proposed', does it mean there will be a change of some sort? What is the general progression and how long could it take? Proposed Rule - Update and Clarify Regulatory Bars to Benefits Based on Character of Discharge.pdf

Thanks. I left there feeling positive.

On the July 16th, I had a hearing before a Veterans Law Judge regarding my character of discharge. My appeal is based on a PTSD diagnosis due to MST and insanity at the time of discharge. My stressor in my medical record is treatment for an STD. I was in possession of heroin and marijuana after there was a controlled buy arranged aboard ship. I was given a Special Court Martial (reduction in rank and a fine of $100/mo for 4 months). My discharge was Undesirable for drug use and was a result of an Administrative Decision while on the line Vietnam. Immediately following the administrative discharge board, I was found in possession of marijuana and sent to captain's mast. My Judge stated there would be a decision after review of my files. What is the general timeframe for that kind of decision now?

This stems from the Civ. No.: 3:11-cv-00641 (AWT) that was filed by John Sheperd Jr. This how the article reads on ABC news; The U.S. military has failed to upgrade the discharges of Vietnam veterans who developed post-traumatic stress disorder, resulting in stigma and loss of benefits, according to a federal lawsuit filed Monday. Five Vietnam veterans and three veterans organizations are suing the Army, the Navy and the Air Force in Connecticut. The veterans say they suffered PTSD before it was recognized and were discharged under other-than-honorable conditions that made them ineligible for benefits. The lawsuit, which seeks class-action status to represent tens of thousands of veterans, says the military has systematically denied applications for upgrades involving evidence of PTSD. "Unfortunately, the Pentagon has refused to correct the decades of injustice experienced by tens of thousands of veterans who suffer from PTSD but were discharged before it was a diagnosable condition," V Prentice, a law student intern in the Veterans Legal Services Clinic at Yale Law School, which represents the plaintiffs, said in a news release. "This action seeks to compel appropriate action by the military and to finally secure justice for these veterans." Lt. Col. Damien Pickart, a Pentagon spokesman, said the department doesn't comment on pending litigation. The Department of Defense has said the agency is committed to addressing concerns related to PTSD and has taken numerous steps, including conducting PTSD assessments of service members at military treatment facilities. A spokesman for the U.S. Attorney's office also declined comment. Conley Monk, a New Haven resident who served in the Marine Corps in Vietnam, developed PTSD after suffering traumatic events including a barrage of enemy mortar rounds and the gassing of his unit, according to the lawsuit. He later experienced flashbacks and hyper vigilance when he was stationed in Japan and went absent without leave, the suit said. "When I was in high school, I worked at the VA hospital in the kitchen as a dishwasher. But after I came home from Vietnam, I couldn't even get my job back as a dishwasher because of my bad paper," said Monk, one of the plaintiffs. "My discharge status has been a lifetime scar. If I were discharged today, my PTSD would be recognized and treated and I wouldn't be punished for having a service-connected medical condition." A proposed class-action lawsuit over the issue was filed in 2012 as part of a claim involving a Vietnam veteran, but that veteran's case was settled. The class-action part of the case was not decided, the law students said. Since 1993, only 4.5 percent of about 375 applications for discharge upgrades involving PTSD have been granted for Vietnam veterans, according to the lawsuit, which seeks what it calls consistent and medically appropriate standards for considering the effects of PTSD when determining whether to upgrade a discharge. "Tens of thousands of brave and honorable Vietnam veterans with post-traumatic stress have been doubly injured by the black mark of an other than honorable discharge, resulting in unjustly denied support, services and benefits," said U.S. Sen. Richard Blumenthal, D-Conn. "These heroic veterans are long overdue present day appreciation of modern mental health in the timely review of their discharge upgrade appeals." I just viewed eBenefits and noticed that they have closed my claim. I should have a denial letter in the mail today for my claim.

Thanks for all the input! I finaly got a copy of my file and reviewed the information therein. JT24usn is correct when he states "Well technically you didn't fulfill your first enlistment because your issues started before the true separation date of when the first enlistment would have been complete. 1/30/74 (four years). This means that your whole enlistment would be inclusive as OTH and a bar to benefits but eligible for any healthcare benefits/treatments deemed to be sc. You would be held out under 38 cfr 3.12d(4). Willful an persistent." That is exactly how my Administrative Decisions have expained in the past. It appears as though I am in a catch 22 situation. Initially,I thought and was told that 38 CFR 3:12a would allow me to be eligible. I have since learned that it ony aplies to veerans who enered service after 1980. That strikes me as being disparant treatment. I would like to know the reasoning for that rule. Can someone exlain the logic? In light of the suit by Vietnam Veterans with PTSD (http://watchdogblog.dallasnews.com/2014/03/claiming-ptsd-vietnam-war-veterans-sue-for-military-benefits-and-discharge-upgrades.html/?nclick_check=1), I thought of trying to become part of the class actio suit. I have been diagnosed with PTSD as a result of exeriences before and in Vietnam aboard carriers. I was told that since I was in Texas, i could not join. The five plaintiffs include three Marine veterans and two Army veterans from five states — California, Connecticut, Georgia, Indiana and New York. The three organizations that joined the lawsuit are: Vietnam Veterans of America (VVA), Vietnam Veterans of America Connecticut State Council (VVA-CT), and the National Veterans Council for Legal Redress (NVCLR). I am sure there are others like me out there who would like to get this changed. The estimate is 500,000. Who can I get to help in Texas or start a national movement?

I have applied for a VA home loan and got it back in 1986 but it looks like the requirements are different and they allow for a home loan even though I have an undesirable. If there was a cod made at that time, I never got any information as to what that decision was.

Then, how would I know if my dischsrge was "A discharge because of a minor offense will not, however, be considered willful and persistent misconduct if service was otherwise honest, faithful and meritorious." since I do have an Honorable that covers 02/03/1970-01/26/1973? The OTH covered the period following of 01/27/1973-07/13/1973 during which I had a general court martial followed by a captain's mass. Also, please explain the cross references regarding minimum active duty service requirement and section 3.12a. This confuses me.

I have requested copies of my court martial, captain's mass and the administrative review board. I do not expect to get anything about the captain's mass since that information is kept for only 2 years. In 1995, I would have filed a claim but was denied service based on the OTH. My job with the section of the VA which I was employeed sent me there for evaluation which never happened. I again tried in 2003 and was sent a one paragraph stating I was ineligible for VA services (seems to refer to a previous decision). I do not see a link to attach my document but, I will if that link is identified.