Victory At Abcmr

[USACID]

All, as some of you may recall from one of my first posts, the Army DRB upgraded my discharge in 2006. Last week, literally just three days after the VA awarded me 30 percent and deferred on other issues, the Army Board for the Correction of Military Records decided my case. The opinion some 28 pages in length, reversed the discharge, ordered reinstatement to the US Army until my proper date of discharge in 1992; ordered back pay and allowances at the highest rank held; removed all references to the discharge from my files; remove a final adverse EER and directed certain other actions. They stopped short at providing promotions to bring me current through the date of the decision and ordering full reinstatement to the active US Army. I am not certain what my next step will be if I even have one to work on, but I have a year to do it.

While this isnt a total victory for me it is a substantial one, worth financially about $78k. The Board directed DFAS to cut me a check by November 16, 2007 and ordered all directed changes to be accomplished by then. But more than the money is the fact that every single hearing that I have had on the validity of my discharge has found the discharge to be unlawful, at the VA, the DRB and now the ABCMR. I did this without counsel, and the amount of hours I put into it are to many to count. I really thought this was iffy for me since the statute said that you have three years from the date of discharge to make an application. But in the middle of all this the law changed which certainly helped me.

The three year statute that used to exist for filing before the ABCMR or other corrections Boards has been removed by order of the US Court of Appeals since the law requires that one exhaust his or her remedies before the Discharge Review Board first. That statute requirement to file for an upgrade of your discharge is 15 years from the date of discharge. Therefore the statute of limitations now begins to run on the first day that the DRB makes its decision provided you have timely filed before the appropriate DRB.

I dont know if anyone else has had any experience before the ABCMR like this but I would love to hear from you if you have.

[Berta]

This is ABSOLUTELY WONDERFUL!

You have proven what many think cannot be done- CAN be done-

I understand that the DRB gives leeway on their time limits if there are other mitigating factors but not sure of that-

Have you ever heard of Edwin Crosby?

He did a great show recently at Stardust RAdio-SVR_ and is in their archives-probably in June 2007 as to the RE codes and gave a great rundown of this whole process-

I am sure he would be glad to hear of your success as you did it right and prepared your case very well-

obviously-

this is remarkable-

I will try to find his website and email addy---

Victory !- no other word comes close to this!

[USACID]

Hi Berta, thank you for the kind words. I have not heard of this gentleman, but would love to talk to him. Believe it or not, on Monday in my mailbox was the paperwork from DFAS indicating they needed me to fill out some tax paperwork and telling me to expect payment within 90 days. I have never seen the army move that fast in my life.

Again if anyone here has had an application before the ABCMR especially if you were enlisted, I would love to talk with you. Here is why. Since the discharge is classified as unlawful and procedureally defective, and I was in career status with over ten years, I am looking for reinstatement not just to the end of the contract but through the time the ABCMR made its decision. If I were an officer, that would not be a problem. However, at the time I was in Officer Candidate Status, which means I was still considered enlisted under Title 10. I think one could assume that someone with over ten years and promotable to E-7 was in a career status. As such, and of course this is just my way of thinking, I should have been entitled to recoup the funds I lost, offset by any income during those years as the law requires. So far all of the case law at the court of federal claims is against me. The case law very specificically states that "...normally, an enlisted member is entitled to recoup back pay and allowances until the conclusion of his contract as no one is guaranteed a right of re-enlistment in the armed forces..." If anyone had similar dealings with the ABCMR, I would love to hear from you. If you know someone who underwent this process, please put me in touch with them.

If someone knows of a group that might be able to provide me insight into this area of the law, please let me know or have them contact me through this site or by PM.

Thank you all. Your wisdom has served me well. I love reading the post and getting educated on these matters.

[Berta]

Yes that IS fast!

Here is Edwin's site:

http://www.landscaper.net/discharg.htm

ECROSBY1@rochester.rr.com

I think his taped show is under July 18th at the left bottom of the page:

http://www.stardustent.com/svr.htm

[john999]

USACID

Winning at the BCMR is a big deal. The chips are stacked against you. I lost recently because I had waited too long past the 15 year time limit. It was a shot in the dark . My experience was that I did not have a chance of winning but maybe since they have been getting heat lately they are more decent than they used to be. They simply ignored my evidence.

[USACID]

John/Berta, thanks for the response

John would you mind sharing the issues in your case, (I am more interested in why they declined to grant the relief or to offer a formal hearing to resolve issues) perhaps through PM? If you dont want to thats okay too, I understand. I have started a communication with a prominent DC lawyer named David SHeldon. He is the attorney who prevailed on the Nix. v. US case involving PTSD claims and retirement and backpay all the way to the date of discharge. We will see what shakes....Thanks.

[john999]

The main reason I lost was because the 15 year time limit to appeal had passed. The other reason was just because the Army did not want to pay me. It was one of those cases where it was cheaper just to discharge me for a so-called personality disorder. I was granted a service connected disability by the VA retro to the day after discharge. I filed for compensation within one year of discharge so the assumption is that I had the disability while in service.