[CUE regarding COD 2011 Admin Decision]

I think the MST explanation must've confused everyone. I've reformulated my argument since starting this thread and seeing your replies. Forget about the MST altogether and please let me know if this is an acceptable CUE: 

Quote

 

The March 2011administrative decision contains clear and unmistakable error in finding that my period of service from March 3, 2005 to June 6, 2010 is dishonorable for VA purposes and consequently denying my veteran’s compensation claim for combat related PTSD, depression, and insomnia. 

 

The law, as it was at the time, was incorrectly applied in finding only one period of service from March 2005 to June 2010 and characterizing it as dishonorable for VA purposes. At the time of the administrative decision my service personnel records, including copies of my DD-214 were of record. Additionally, my service personnel record reflecting my UCMJ violations which led to my discharge under other than honorable conditions were available for review. These records showed that I originally enlisted in the Army for a period of four years in March 2005.  My scheduled discharge date would have been in March 2009.  However, prior to the termination of my first period of service, I reenlisted for a second period of service in June 2007 for a period of six years, with a scheduled discharge date of June 2013. 

 

These records also showed that, I had UCMJ violations that led to my discharge in lieu of trial by court martial in June 2010. The first incident involving alleged UCMJ violations which led to my discharge was on July 19, 2009. Subsequent alleged UCMJ violations took place on June 24th, and 26th of 2009. All incidents of misconduct which led up to my discharge occurred after my initial period of service would have ended in March 2009. 

 

Despite the fact that no unconditional discharge may have been issued, a person shall be considered to have been unconditionally discharged or released from active military, naval, or air service when (1) the person served in the active military, naval, or air service for the period of time the person was obligated to serve at the time of entry into service; (2) the person was not discharged or released from such period at the time of completing that period of obligation due to an intervening enlistment or reenlistment; and (3) the person would have been eligible for a discharge or release under conditions other than dishonorable at that time except for the intervening enlistment or reenlistment.  See 38 C.F.R. § 3.313(c).  

 

I contend that I had two distinct periods of service and that the first period, from March 2005 to March 2009, constitutes honorable service for the purpose of eligibility for VA benefits.  As noted above, I originally enlisted for service in March 2005 for a period of three years, which would have expired in March 2009.  However, prior to the termination of my first period of service, in March 2009, I was separated for the purpose of an immediate reenlistment, which would have expired June 2013.  As such, my discharge to reenlist was conditional because it was issued prior to the date I was actually eligible for unconditional discharge.  

 

Therefore, under these circumstances, my entire period of service does not constitute one period of service and entitlement wouldn’t be determined by the character of the final termination of such period of active service, which in my case was terminated in lieu of trial by courts-martial. 

 

Had this clear and unmistakable error not been made, the outcome would have been manifestly different. I would have been deemed eligible for VA benefits for my first period of service and granted service-connection and received benefits, compensation and treatment for my combat related PTSD, depression, and insomnia which were a direct result of my service in Iraq from October 2006 to October 2007, well within my period of eligible honorable service, which has yet to be recognized. As I was discharged in June 2010 and filed a VA Form 21-526, Veteran’s Application for Compensation and/or Pension, less than a year from my discharge, the effective date of my service connection for PTSD, depression, and Insomnia should be June 7th, 2010, the day after my discharge from active duty. 

 

Please reverse the erroneous administrative decision and schedule C&P exams for combat related PTSD, depression, and insomnia. 

 

Medical records for the treatment of these conditions were available and on record at the time of my original claim. Treatment records for these conditions since the time of the original claim are attached. 

 

 

Thank you greatly. 

 

 

 

[CUE regarding COD 2011 Admin Decision]

I have my C-file. I posted a few documents from it a few replies up.

So I would submit a discharge upgrade and an amendment of records both to the BVA? 

Thank you broncovet! 

[CUE regarding COD 2011 Admin Decision]

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? 

[CUE regarding COD 2011 Admin Decision]

 

 

6 hours ago, 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 did not appeal because I actually didn't know of this decision until recently. They sent the notifications to an address I didn't live at and it was returned to them. So no, I did not appeal. I have record of the returned mail though. 

I think M21-1MR, Part III, Subpart v, Chapter 1, Section B covers this: 

d.  When it is Not Necessary to Make a COD Determination 

It is not necessary to make a COD determination for VA claim purposes

 

before the claimant applies to VBA and places the matter at issue, or

if there is a separate period of honorable service, which qualifies the person for the benefits claimed

 

Exception: A COD determination may be made prior to a claimant’s an application for VBA benefits, as noted in M21-1MR, Part III, Subpart v, 1.B.5.f

 

Note: If there is any question regarding which period of service would qualify the person for the benefits claimed, a COD determination must be made before a rating decision can be completed. 

there's even an example in section 9 specifically about re-enlistements 

 

Vetsnet_CandP_Redacted.pdf

DD214_Redacted.pdf

AdminDecision.pdf

[CUE regarding COD 2011 Admin Decision]

1 hour ago, broncovet said:

The VA has a particular "order" in which things are done.  

1.  First is service connection.  Since you apparently are not service connected, you need to accomplish this, first.  Work on making sure your "big 3" are documented: Current diagnosis, in service event or aggravation, and nexus.  

2.  Next, is effective date.  An effective date is irrelevant if you are not service connected.  

So, before you work on CUE, or effective dates, work on service connection first.  Then, you can file a cue to try to get an earler effective date, should that be appropriate at that time.  

    This said, I completely get why you would want to go ahead and file a cue, get benefits at an earlier date.  However, you simply need to get service connected, a disability percentage, and effective date in that order.  There is no shortcut to that.  

    If you have little or no income, then you should consider applying for pension if you have not already, since it sounds like you served in wartime.  If you are making 1200 a month or so pension, it makes waiting on your benefits much easier, as 1200 per month is better than 1199 per month MORE than nothing.  I wish I would have applied for pension much, much earlier...I had no idea it would take me more than 7 years to get my benefits.  In fact, its been 14 years and I still dont have them all, Im currently in appeal at the CAVC.  

Thanks for your reply broncovet. Wow, 14 years? It's been 6 in my case, so in a way I'm grateful I haven't gone past a decade, but it's getting close. I keep seeing CAVC on here and I'm not sure what that abbreviation means. Do you mind enlightening me?

The thing about my service connection is that when I originally filed my VA claim in 2010, VARO had all the information necessary to service connect me and didn't, so that would be a part of the CUE as well, no? I have my C-file & I really feel like diagnosis, event, and nexus were already there -- but I wasn't given a C & P exam for the PTSD & my claim was closed prematurely*, in March 2011 because of the admin decision saying that I was Dishonorable for VA Purposes. But you're saying that I should first create a new claim before CUEing? Wouldn't the VA just see that previous admin decision and say I was ineligible to apply for VA benefits? That's what a certain, un-named VSO told me. Grrr. I swear, I hear a different set of advice from everyone. Wading through it all has been quite a chore, but I feel like I'm finally getting a handle on what needs to be done. So thanks for the help. 

*I say prematurely, because shouldn't you have a year to submit all the evidence necessary for a claim? I submitted my claim in June 2010. So, technically, I still would've had 3 months left on my claim, had they not gotten the admin decision which barred me from benefits, no?

Also, I looked up the pension info. Can't believe I didn't know that existed before. Thank you!  Thankfully, right now, with my husband and I's combined income, we make too much to be considered low enough income, but it's a good resource to have for the toolkit. I might be able to help someone else out with that info or use it in the future. Goodness knows I could've used it so many times in the past 6 years. 

I'm completely ready and willing to file a new claim, but if it has some of the matching information that was in my first claim, will they consider this to further finalize the decision on it... or effective date is a separate issue that I can CUE on later without a new claim further finalizing any decision the VA has already made? 

Thanks for your help!

[CUE regarding COD 2011 Admin Decision]

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