ptsd Confused!

[RIKK]

MNANG(52D) from 94-97 perfect service, no problems..... joined RA in 97 suffered injury at Benning. Ended up getting OTH in 1999 with time missed(416 days) due to said injuries. Things unfolded in 05 when I got diagnosed with a slew of things like GAD,Panic disorder,Agoraphobia,Major Depression,PTSD and I think I have TINNITUS. So in short I have 94-97 NG time =good and 97-99 RA with a backmark= OTH with narrative reason "in lue of trial bt court martial" Any thoughts?

[carlie]

RIKK,

Welcome to Hadit.

Stick around - I'm going to call in re-inforcements on this post.

carlie

[Philip Rogers]

RIKK - welcome! File the claim, today, so you don't lose any potential compensation. Once filed, you can develop the claim and secure the necessary evidence. Wings, our resident expert on this subject, will probably join in shortly.

pr

MNANG(52D) from 94-97 perfect service, no problems..... joined RA in 97 suffered injury at Benning. Ended up getting OTH in 1999 with time missed(416 days) due to said injuries. Things unfolded in 05 when I got diagnosed with a slew of things like GAD,Panic disorder,Agoraphobia,Major Depression,PTSD and I think I have TINNITUS. So in short I have 94-97 NG time =good and 97-99 RA with a backmark= OTH with narrative reason "in lue of trial bt court martial" Any thoughts?

Edited June 22, 2009 by Philip Rogers (see edit history)

[RIKK]

I have 5-6 or so Doc's saying the same things, I got SS the FIRST time around in 05. Yeah, I'm legit. no bones about it.

[WHOLESALE]

I welcome you also Rikk. Glad to have you here and we will help.....

RIKK,

Welcome to Hadit.

Stick around - I'm going to call in re-inforcements on this post.

carlie

[Pete53]

Rikk:

Welcome to Hadit. I guess that you also want to upgrade your discharge. There are Members here who know the ropes.

Good Luck on your claim the VBA is pretty good a screwing other Veterans who were sick and deserved much more than the treatment that they got.

[Tbird]

you may find this helpful discharge upgrading http://www.nlgmltf.org/pdfs/DischargeUpgrade_Memo.pdf

Rikk:

Welcome to Hadit. I guess that you also want to upgrade your discharge. There are Members here who know the ropes.

Good Luck on your claim the VBA is pretty good a screwing other Veterans who were sick and deserved much more than the treatment that they got.

[WHOLESALE]

I had an OTH and the VA gave me 50% S/C so as long as your service was honorable besides this one incident then you should be ok. I haven't started the upgrade process yes but will soon. I am waiting on my doctors opinion that I was in a manic episode which resulted in bad judgement leading to my OTH. I you can show your disability contributed to your discharge then you have a good shot. It's worth upgrading, especially to honorable, since you may reclaim benefits such as the GI bill since you have to have honorable to get it.

Jay

MNANG(52D) from 94-97 perfect service, no problems..... joined RA in 97 suffered injury at Benning. Ended up getting OTH in 1999 with time missed(416 days) due to said injuries. Things unfolded in 05 when I got diagnosed with a slew of things like GAD,Panic disorder,Agoraphobia,Major Depression,PTSD and I think I have TINNITUS. So in short I have 94-97 NG time =good and 97-99 RA with a backmark= OTH with narrative reason "in lue of trial bt court martial" Any thoughts?

[navydoc2]

welcome, I've learned more here in the last three months than the whole eight years fighting with the VA on my own.

[Berta]

With the prior HD this should be correctable and you got good advise here so far-

Do you have a proven and well established nexus for getting those disabilities you mentioned service connected?

[Wings]

x

x

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I have some ideas for you, but won't be able to get to it until this evening.

First things First, File a CA "Claim", and ask the VA to adjudicate your "Character of Discharge" ... You want to argue, that under 38 CFR Sec. 3.12, you had "compelling reasons and circumstances" for being AWOL over 180 days. See the regulation below. Search BVA cases to find a few like yours. More later. ~Wings

C.F.R. 3.12 Character of discharge.

(a) If the former service member did not die in service, pension, compensation, or dependency and indemnity compensation is not payable unless the period of service on which the claim is based was terminated by discharge or release under conditions other than dishonorable. (38 U.S.C. 101(2)). A discharge under honorable conditions is binding on the Department of Veterans Affairs as to character of discharge.

(b) A discharge or release from service under one of the conditions specified in this section is a bar to the payment of benefits unless it is found that the person was insane at the time of committing the offense causing such discharge or release or unless otherwise specifically provided (38 U.S.C. 5303(b)).

© Benefits are not payable where the former service member was discharged or released under one of the following conditions:

(1) As a conscientious objector who refused to perform military duty, wear the uniform, or comply with lawful order of competent military authorities.

(2) By reason of the sentence of a general court-martial.

(3) Resignation by an officer for the good of the service.

(4) As a deserter.

(5) As an alien during a period of hostilities, where it is affirmatively shown that the former service member requested his or her release. See §3.7(b).

(6) By reason of a discharge under other than honorable conditions issued as a result of an absence without official leave (AWOL) for a continuous period of at least 180 days. This bar to benefit entitlement does not apply if there are compelling circumstances to warrant the prolonged unauthorized absence. This bar applies to any person awarded an honorable or general discharge prior to October 8, 1977, under one of the programs listed in paragraph (h) of this section, and to any person who prior to October 8, 1977, had not otherwise established basic eligibility to receive Department of Veterans Affairs benefits. The term “established basic eligibility to receive Department of Veterans Affairs benefits” means either a Department of Veterans Affairs determination that an other than honorable discharge was issued under conditions other than dishonorable, or an upgraded honorable or general discharge issued prior to October 8, 1977, under criteria other than those prescribed by one of the programs listed in paragraph (h) of this section. However, if a person was discharged or released by reason of the sentence of a general court-martial, only a finding of insanity (paragraph (b) of this section) or a decision of a board of correction of records established under 10 U.S.C. 1552 can establish basic eligibility to receive Department of Veterans Affairs benefits. The following factors will be considered in determining whether there are compelling circumstances to warrant the prolonged unauthorized absence.

(i) Length and character of service exclusive of the period of prolonged AWOL. Service exclusive of the period of prolonged AWOL should generally be of such quality and length that it can be characterized as honest, faithful and meritorious and of benefit to the Nation.

(ii) Reasons for going AWOL. Reasons which are entitled to be given consideration when offered by the claimant include family emergencies or obligations, or similar types of obligations or duties owed to third parties. The reasons for going AWOL should be evaluated in terms of the person’s age, cultural background, educational level and judgmental maturity. Consideration should be given to how the situation appeared to the person himself or herself, and not how the adjudicator might have reacted. Hardship or suffering incurred during overseas service, or as a result of combat wounds of other service-incurred or aggravated disability, is to be carefully and sympathetically considered in evaluating the person’s state of mind at the time the prolonged AWOL period began.

(iii) A valid legal defense exists for the absence which would have precluded a conviction for AWOL. Compelling circumstances could occur as a matter of law if the absence could not validly be charged as, or lead to a conviction of, an offense under the Uniform Code of Military Justice. For purposes of this paragraph the defense must go directly to the substantive issue of absence rather than to procedures, technicalities or formalities.

(d) A discharge or release because of one of the offenses specified in this paragraph is considered to have been issued under dishonorable conditions.

(1) Acceptance of an undesirable discharge to escape trial by general court-martial.

(2) Mutiny or spying.

(3) An offense involving moral turpitude. This includes, generally, conviction of a felony.

(4) Willful and persistent misconduct. This includes a discharge under other than honorable conditions, if it is determined that it was issued because of willful and persistent misconduct. A discharge because of a minor offense will not, however, be considered willful and persistent misconduct if service was otherwise honest, faithful and meritorious

(5) Homosexual acts involving aggravating circumstances or other factors affecting the performance of duty. Examples of homosexual acts involving aggravating circumstances or other factors affecting the performance of duty include child molestation, homosexual prostitution, homosexual acts or conduct accompanied by assault or coercion, and homosexual acts or conduct taking place between service members of disparate rank, grade, or status when a service member has taken advantage of his or her superior rank, grade, or status.

(e) An honorable discharge or discharge under honorable conditions issued through a board for correction of records established under authority of 10 U.S.C. 1552 is final and conclusive on the Department of Veterans Affairs. The action of the board sets aside any prior bar to benefits imposed under paragraph © or (d) of this section.

(f) An honorable or general discharge issued prior to October 8, 1977, under authority other than that listed in paragraphs (h)(1), (2) and (3) of this section by a discharge review board established under 10 U.S.C. 1553 set aside any bar to benefits imposed under paragraph © or (d) of this section except the bar contained in paragraph ©(2) of this section.

(g) An honorable or general discharge issued on or after October 8, 1977, by a discharge review board established under 10 U.S.C. 1553, sets aside a bar to benefits imposed under paragraph (d), but not paragraph ©, of this section provided that:

(1) The discharge is upgraded as a result of an individual case review;

(2) The discharge is upgraded under uniform published standards and procedures that generally apply to all persons administratively discharged or released from active military, naval or air service under conditions other than honorable; and

(3) Such standards are consistent with historical standards for determining honorable service and do not contain any provision for automatically granting or denying an upgraded discharge.

(h) Unless a discharge review board established under 10 U.S.C. 1553 determines on an individual case basis that the discharge would be upgraded under uniform standards meeting the requirements set forth in paragraph (g) of this section, an honorable or general discharge awarded under one of the following programs does not remove any bar to benefits imposed under this section:

(1) The President’s directive of January 19, 1977, implementing Presidential Proclamation 4313 of September 16, 1974; or

(2) The Department of Defense’s special discharge review program effective April 5, 1977; or

(3) Any discharge review program implemented after April 5, 1977, that does not apply to all persons administratively discharged or released from active military service under other than honorable conditions. (Authority: 38 U.S.C. 5303(e))

(i) No overpayments shall be created as a result of payments made after October 8, 1977, based on an upgraded honorable or general discharge issued under one of the programs listed in paragraph (h) of this section which would not be awarded under the standards set forth in paragraph (g) of this section. Accounts in payment status on or after October 8, 1977, shall be terminated the end of the month in which it is determined that the original other than honorable discharge was not issued under conditions other than dishonorable following notice from the appropriate discharge review board that the discharge would not have been upgraded under the standards set forth in paragraph (g) of this section, or April 7, 1978, whichever is the earliest. Accounts in suspense (either before or after October 8, 1977) shall be terminated on the date of last payment or April 7, 1978, whichever is the earliest.

(j) No overpayment shall be created as a result of payments made after October 8, 1977, in cases in which the bar contained in paragraph ©(6) of this section is for application. Accounts in payment status on or after October 8, 1977, shall be terminated at the end of the month in which it is determined that compelling circumstances do not exist, or April 7, 1978, whichever is the earliest. Accounts in suspense (either before or after October 8, 1977) shall be terminated on the date of last payment, or April 7, 1978, whichever is the earliest.

(k) Uncharacterized separations. Where enlisted personnel are administratively separated from service on the basis of proceedings initiated on or after October 1, 1982, the separation may be classified as one of the three categories of administrative separation that do not require characterization of service by the military department concerned. In such cases conditions of discharge will be determined by the VA as follows:

(1) Entry level separation. Uncharacterized administrative separations of this type shall be considered under conditions other than dishonorable.

(2) Void enlistment or induction. Uncharacterized administrative separations of this type shall be reviewed based on facts and circumstances surrounding separation, with reference to the provisions of §3.14 of this part, to determine whether separation was under conditions other than dishonorable.

(3) Dropped from the rolls. Uncharacterized administrative separations of this type shall be reviewed based on facts and circumstances surrounding separation to determine whether separation was under conditions other than dishonorable. (Authority: 38 U.S.C. 501(a))

[28 FR 123, Jan. 4, 1963, as amended at 41 FR 12656, Mar. 26, 1976; 43 FR 15153, Apr. 11, 1978; 45 FR 2318, Jan. 11, 1980; 49 FR 44099, Nov. 2, 1984; 62 FR 14823, Mar. 28, 1997]

Cross references:

Validity of enlistments. See §3.14.

Revision of decisions. See §3.105.

Effective dates. See §3.400(g).

Minimum active-duty service requirement. See §3.12a.

Edited June 23, 2009 by Wings (see edit history)

[Wings]

x

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Let me see if this paper will attach. It's a draft (only a draft) by the Veterans Commission, but it does a good job of detailing current laws and legislation dealing with less than fully honorable discharge.

I need to tell you now, that in order to qualify for COMPENSATION, you MUST claim that the injury or disease or stressor event occurred during your HONORABLE period of service. If you file a disability claim for an injury or disease or event that occurred during your OTH service, you will not qualiify!! HOWEVER, if the VA decides (discretional authority) that your OTH was not dishonorable for VA purposes, then you can claim disability from either period of service.

I have been dealing with these issues for 10 years, so I speak from experience. You got more questions, fire away!

~Wings

CharacterofDischarge_Draft_LegalPaper_12_13_06.pdf

Edited June 23, 2009 by Wings (see edit history)

[RIKK]

Wings, by period of service you mean the first 3 years? or my last period BEFORE the OTH was issued?

[RIKK]

In March of 09 I did apply for VA comp but VA sent me somepaperwork saying" We determine your discharge for 97-99 is DISHONORABLE for VA purposes and a bar to VA benifits. got this in April 09 and I,m not sure what to do. I am over whelhmed, I have alot of trouble with reading and comp. these days. They sent VA form 4138's for people who know me to fill out along with my own statement to complete.

[RIKK]

With the prior HD this should be correctable and you got good advise here so far-

Do you have a proven and well established nexus for getting those disabilities you mentioned service connected?

Berta, I gotta ask what "Nexus" means? Lol, I'm a simple man these days.

[carlie]

RIKK,

The nexus must be provided by a doctor.

It is a medical link between the in-service event, injury or illnes.

It must be medical because a non-medical person is not qualified to say

that the current disability was caused by the event, injury or illness injury in service.

Also, Study this real good.

http://www.hadit.com/veterans_self_help_guide.html

Hope this helps a vet.

carlie

[Wings]

Wings, by period of service you mean the first 3 years? or my last period BEFORE the OTH was issued?

Do you have an HONORABLE period of service??? Seems to me you are saying you have 2 periods of service. If so, you may claim an injury or disease occuring during the honorable period of service without any legal restraints. If your injury or disease occurred during your OTH period of service, for which the VA determined the character to be Dishonorable for VA purposes, you have one year to file a Notice of Disagreement with the Character of Service determination. You need to appeal!!! ~Wings

[kw34]

Rikk

I am trying to understand you were in the Air National Guard and you went active duty. You may have a little trouble here because you recieve orders that changed your status from the guard to active duty you did not recieve a DD-214 for your service from 94-97 because you only recieve one when you are discharged from Active Service. So from my personal experience as a retired reservest I have 4 different DD-214s active duty, desert storm, enduring freedom, iraqi freedom and when I retired from the reserves I recieved a retirement order. I dont want to be the barer of bad news but i think you have a tough row to hoe unless you get discharge upgraded.

[RIKK]

Wings, I have a dd214 (H) (52D)from "active duty for NG" 1994-1995, I have a ngb22 (H) from the NG 95-97 and a dd214(OTH) (11B) from RA 97-99, now my deal happened in 97 while RA and I did not complete my 8 years in the NG. Are you saying I have 1 year from 99 to try and appeal? that would be 00 or so and 9 years too late. I figured I was screwed~ That's why I thought to hell with it. to them I'm a F-up. The dumb this is I never new I had multi disabilities untill one day I found myself in the ER, I thought I had a heart attack in 04 and that's when I got evaluated and diagnosed haven't worked since. To be honest, I can't be for sure "it's the army's fault" but I know I never had... GAD,Panic Disorder,Agoraphobia,Major Depression,PTSD, and a mind messing whooshing sound in my ears BEFORE I got KTFO by an explosive device in 97. I lost something there, but didn't know it at the time. I had an episode on the plane to 25th ID in HI, my wife saw it too, I became filled with fear(my first panic attack) to be on the plane and got off. The thing is I flew around the world and back before that no problems. So, looking back it makes sense, had no clue at the time though. I never thought to file untill my buddy who got FU'd in force recon told me too, cuz he knows my problems. I thought to myself I'm not Rambo, I'd never been to WAR or shot or had my balls blown off so I'm ok I thought. Sorry about being loose with the details but it's hard for me to get thoughts out and type.

[kw34]

So 1994 to 1995 active duty for training I am not sure what NGB22 is but what matters is the injury occured on active duty and the DD-214 with the remarks and what the VA said in their denial. I say work on the discharge get it upgraded as fast as you can because you have one year from the date of your denial to appeal. You can win I was denied the first time I appealed and won. I understand it is tough for you but if you could dont use so many accronyms this air force guy is a little slow. :D

[Wings]

Editing for clarity and to decode some of your abbreviations. I still have some questions ... Will get back to you in the morning. If you haven't done so already, GET A COPY OF YOUR SERVICE MEDICAL and PERSONNEL RECORDS. ~Wings

DD214 (HON)(52D)from Active Duty for National Guard 1994-1995; and

NGB22 (HON) from the NG 95-97; and

DD214 (OTH)(11B) from RA 97-99.

My deal happened in 97 while RA [what is RA? Regular Army?] I did not complete my 8 years in the NG.

Are you saying I have 1 year from 99 to try and appeal?

No! I am saying you have one-year to Appeal the VA's determination that your Character of Service (OTH) was dishonorable for VA purposes. You need to study the regulation below (CFR 3.12), and tell the VA why you were AWOL for more than 180 days. If there were "compelling reasons" for your AWOL, you need to state your case. The VA has the authority to change your OTH to HON if they grant your appeal.

In the meantime, you should apply to the Army Board for Correction of Military Records for a change in your discharge, but this is very hard to do on your own. I can tell you more about thhat tomorrow.

I never new I had multi disabilities untill one day I found myself in the ER, I thought I had a heart attack in 2004 and that's when I got evaluated and diagnosed haven't worked since. To be honest, I can't be for sure "it's the army's fault" but I know I never had... GAD,Panic Disorder,Agoraphobia,Major Depression,PTSD, and a mind messing whooshing sound in my ears BEFORE I got KTFO by an explosive device in 97. I lost something there, but didn't know it at the time. I had an episode on the plane to 25th ID in HI, my wife saw it too, I became filled with fear(my first panic attack) to be on the plane and got off. The thing is I flew around the world and back before that no problems. So, looking back it makes sense, had no clue at the time though. I never thought to file untill my buddy who got FU'd in force recon told me too, cuz he knows my problems. I thought to myself I'm not Rambo, I'd never been to WAR or shot or had my balls blown off so I'm ok I thought. Sorry about being loose with the details but it's hard for me to get thoughts out and type.

Edited June 26, 2009 by Wings (see edit history)