Daniel F

Berta, I was discharged UP AR 635-208, I have a copy if you need one. I am sending the CVA memorandum decision and a copy of DOD directive of 1-14-1959. I am sorry but it is 2;00 AM here and I just woke up. What ever you need let me know and I will send it. A quick overview, I was in the army 242 days with no misconduct documented on my record. I completed Radar school in NJ and was sent to Hawk missile school in Ft Bliss Texas. I was at this post 26 days before going AWOL for 3 day and 11 days later I went AWOL again for 4 days Both AWOL's were in an 18 period from 11-1 to 11-18-1962 the only misconduct in my record, I received a Special court martial on 11-30-1962, only other evidence consider was the Summary CM for 3 days AWOL, was sentenced to the maximum punishment under UCMJ, instead of 6 months sentence my sentence was for 5 months. I went directly back to the Stockade where I was on pre-trial confinement since 11-18-1962 and remained incarcerated till my discharge on 3-23-1962. Six days after my court martial I underwent a psychiatric evaluation before going before a AR 635-208 Board to consider the psychiatrist diagnosis and recommendation for discharge under provisions of AR 635-208 and was discharged. In August 1 t0 August the 8th I was in Tripler Army Hospital for attempted suicide, Diagnosis Was Passive Aggressive reactions mild, Stress mild (Domestic difficulties) and Poor home milieu MORE Importantly is What was not found, A Conduct Disorder before the age of 15 years, no an Anti Social personality which existed prior to service..AS required by DSM IV 41h edition. When I entered the service under the full presumption of Soundness, In 60 years of psychiatric evaluation and treatment. No mental health professional has found, diagnosed or treated an anti social personality disorder. I do not have today nor did I have an anti-social personality disorder on December 6, 1961. There are 9 years of Tucson VCA hospital mental health unit which records had never been in my record before the agen

Berta, I was discharged UP AR 635-208, I have a copy if you need one. I am sending the CVA memorandum decision and a copy of DOD directive of 1-14-1959. I am sorry but it is 2;00 AM here and I just woke up. What ever you need let me know and I will send it. A quick overview, I was in the army 242 days with no misconduct documented on my record. I completed Radar school in NJ and was sent to Hawk missile school in Ft Bliss Texas. I was at this post 26 days before going AWOL for 3 day and 11 days later I went AWOL again for 4 days Both AWOL's were in an 18 period from 11-1 to 11-18-1962 the only misconduct in my record, I received a Special court martial on 11-30-1962, only other evidence consider was the Summary CM for 3 days AWOL, was sentenced to the maximum punishment under UCMJ, instead of 6 months sentence my sentence was for 5 months. I went directly back to the Stockade where I was on pre-trial confinement since 11-18-1962 and remained incarcerated till my discharge on 3-23-1962. Six days after my court martial I underwent a psychiatric evaluation before going before a AR 635-208 Board to consider the psychiatrist diagnosis and recommendation for discharge under provisions of AR 635-208 and was discharged. In August 1 t0 August the 8th I was in Tripler Army Hospital for attempted suicide, Diagnosis Was Passive Aggressive reactions mild, Stress mild (Domestic difficulties) and Poor home milieu MORE Importantly is What was not found, A Conduct Disorder before the age of 15 years, no an Anti Social personality which existed prior to service..AS required by DSM IV 41h edition. When I entered the service under the full presumption of Soundness, In 60 years of psychiatric evaluation and treatment. No mental health professional has found, diagnosed or treated an anti social personality disorder. I do not have today nor did I have an anti-social personality disorder on December 6, 1961. There are 9 years of Tucson VCA hospital mental health unit which records had never been in my record before the agency. IMG_20200314_0004_NEW.pdf IMG_20180814_0001.pdf Document.pdf

I know Hadit cannot address OTH Discharges But my case is different because the BVA decision states I based my claim on the wrong Army Regulation May 1956 instead of April 14, 1959. The Court found for the Boards decision, as this regulation was not before the Board at the time of the decision. I went over all AR'S but could not find this one, I finally found it in the Congressional Record of the 88th Congress 1962. A Department of Defense directive dated 1-14-1959 Which became effective 90 days later on (April 14, 1959)Which cancelled and Superseded all other service regulations on administrative discharges. Stating the definition of what was misconduct and what was Unfitness. I was discharged by the Army under an Army Regulation that had been cancelled 2 years and 11 months before my discharge. I was discharged for a Personality Disorder for Unfitness. The VA found my discharge was for Willful and Persistent misconduct, DOD directive states I should be discharged for unsuitability for further retention in the service due to the diagnosis of a personality disorder. That my Character of service would be based solely on my service records which document no other problems documented by the record. The Courts decision was correct because I was discharged under provisions of DOD directive April 14, 1959, (the CVA upheld the Board decision that I predicated my defense on the wrong army Regulation ) I was discharged on 3-23-1962, under an Army reg that was cancelled 3 years before my discharge under its provisions. The DOD directive is new and material evidence. The CVA decision in reality was favorable to my claim (Which the Court did not mean it to be) What are my options The Board decision was in August 2014 and the CVA decision was in 2016, what are my options and which other VA forms must be filed? I found the DOD directive about 5 months ago! Thank you Dan

Where to e-mail or fax Cues claim to the Board during the shut down, prefer e-0mail if possible?

Berta forgot to add My AWOLs in the Army two in 18 days One for (3 days) and another for (4 days) no other acts of misconduct in the record for the first 242 days of service vs. (7 days) AWOL. The record does not document the AOJ ever consider the evidence I submitted favorable to my claim. The AOJ never responded to NOD's or any other issues I had raised! I did have an Article 15 which was not enter into my personal file,

Berta, You looked at my claim and saw no CUE in it, That is the problem I have is that everyone looks at what is of Record. But the record is not correct. I have at least 3 issues I like to focus on. The AOJ amended the Facts and circumstances by adding two serious acts of misconduct 1. on Article 15 of July 1961 and a rehabilitative transfer., There is no mention of either in the documents received from the record center. In the Psychiatric evaluation there is a 10 word statement "In July 1961 he received an Article 15 for misconduct, " from a question the Psychiatrist asked me. from that Ten word statement the AOJ found a finding of fact and was the determinative factor in the finding of Willful and persistent misconduct. Those documents do not exist any where in the record. 2.THE COURT REMANDED THE CLAIM IN 2006, I submitted my response to the Board in June 2007, claim was remanded to AOJ, on 1-8-2008, '3. Readjudicate the claims on appeal based on all of the evidence of record. If any benefit sought on appeal is not granted, provide the appellant a supplemental statement of the case, which cites the regulations pertinent to Board hearings, including 38 C.F.R. §§ 20.700-20.704, and an opportunity to respond thereto”. (RBA 2871) . the claim was returned to the AOJ ln 2010 (without complying with remand order) a major procedural error. The record dose not document this was ever done. 3. I was discharged under AR 635-208 for the diagnosis of antisocial personality disorder in 3-23-1962 with an Undesirable discharge. I never had a ASPD in 1961 or today, I had an (8) day closed ward psychiatric exam at Tripler Army hospital Psychiatric ward from August 1 to August 8, 1958. Diagnosed with passive/aggressive reaction and secondary diagnosis for Stress (mild). DSM IV 4th Edition requires a Conduct disorder before the age of 15. and ASPD should not be diagnosed if the behavior happened during a manic episode. Found out I was discharged for ASPD (33) years after discharge, I had 3 private psychiatric evaluations already of record and was under treatment from the local VA hospital mental health unit. no other mental health professional has diagnosed or treated ASPD in the 56 years since I was discharged. The 9 years mental health records are not in the record available to me. The 1961 evaluation document the VA definition for insanity? Also I have tried to SC a life long depression since I left the service and scars and numbness of two finger in my left hand. Do you have my claim with RBA page notations? Any comments would be helpful Thank you Berta for your consideration!

First I will respond to the question, I took a copy of my in-service 1961 hearing exam and showed it to the rating exams doctor and in my first enlistment my advanced Basic training was at the Ft. Knox armored training center and then I was stationed at Ft. Polk Louisiana in the First Amour division, before I was transferred to Hawaii as a Military Police unit. The VA doctor wrote that in his report and stated tinnitus started then. He also stated some hearing loss was picked up on active duty as I show him the results of the hearing test. Acoustical trauma cause by exposure to 90 mm cannon fire hearing loss is a paired-disability to tinnitus. I would go to a hearing specialist with my test and time in the service when you were exposure to acoustically trauma noise exposure and hopefully he will write an opinion that tinnitus "more likely then not " started at the time of exposure! Now a question for Berta. I received an Undesirable Discharge UP of AR 635-208. No charges were pending against me, when my CO recommended me for Psychiatric evaluation, The Certificate of Psychiatric evaluation diagnosed Antisocial personality, that was not amendable to treatment of any kind, and Recommended I be discharged UP of AR 635-208 for unfitness! Plain and Simple. In an administrative decision in 1996 the AOJ found that I was issued an OTHD for willful and Persistent misconduct. The AOJ altered the records received from the service Department by adding two serious incidents of Misconduct in the finding of facts, I am filing a CUE's mainly on. " Service Department findings (i.e. The Army, Navy and Air Force) are binding and conclusive upon VA purposes of establishing an individual's service. VA does not have the authority to alter the findings of the service department. 38 C.F.R. s 3.203 (a); Spencer v. West, 13 Vet. App. 376, 380 (2000)" The VA made a finding of Fact, on a ten word statement made in the Evaluation " In July 1961 he received on article 15 for misconduct" and also a Rehabilitative transfer with no evidence in the record at all, I need Statue or Regulations that defines a Finding of Fact and the Evidence required to attack the AOJ finding of Fact! Dirty dan

OK !

I filed pro se for hearing loss in 1995, after 20 years I tried to get a lawyer representation or Pro Bono legal help , everyone who read my claim turned it down as unwinable. I had an in service hearing loss of record but the VA found I was not eligiable for benefits due to my OTHD and documentation of a hearing loss was in my 2nd period of service. Going over my Army psysical I noticed some hearing loss noted but that marked out and replaced with 10s. I enter that into the record and the VA conceded that I had some degree of a Hensley hearing loss on entering my secord enlistment.I kept reading that in the final decision rejecting my claim and remembered for some reason I went back home for a few days prior to taking my oath for my second enlistment. That gave me documentation of a hearing loss prior to entering my second tour . I was given 30% for hearing loss and 10% for tinnitus, and then VA gave me 10% increase for an exceotional pattern of hearing loss in my left ear and a final 60% based on documented hearing test that indicated my hearing was getting worse. I filed an NOD based on my VA rating exam, and two 10 year older private exams indicated I had an exceptional pattern of hearing loss prior to and on my hearing rating exam. also filing for 100% due to unemployability. If I did it anyone can do it, To answer your question yes some of us get more than 0% for hearing loss! dirty dan !