Help With Letter Of Disagreement

[skc8738]

Hi, My name is Kevin. I was in the Army active duty till last year when I got out on an OTH discharge which in some ways I deserved for my actions. But at the same time I feel that the things that happened could have been avoided if I had had proper help dealing with the things that were going on after being back from Iraq. I have injuries that I sustained while being in a infantry unit in Iraq along with several other problems. I went to Iraq fresh from AIT and as soon as we returned It seemed as though everyone I fought with went elsewhere. And none of the PA's seemed to help with me my injuries other than ibuprofen and "i am not sure shrugs." I got pretty depressed and made some very bad decisions with no one who cared enough around to guide me in the right direction. To be honest I was completely terrified of being in the field or returning to Iraq. Now I have several problems, the most of which my right hand is pretty messed up especially the pinky. And cant afford reconstructive surgery. I tried to file my compensation packet. and now they have sent me a letter saying that my service is not honorable for VA purposes, and that if I disagree with this I need to write them a "letter of Disagreement" That is where I am at a loss of what this letter needs to include and etc. Any help at all is more than I have now. Thank you so much for you time and answers. K. Caywood

[skc8738]

Hi, My name is Kevin. I was in the Army active duty till last year when I got out on an OTH discharge which in some ways I deserved for my actions. But at the same time I feel that the things that happened could have been avoided if I had had proper help dealing with the things that were going on after being back from Iraq. I have injuries that I sustained while being in a infantry unit in Iraq along with several other problems. I went to Iraq fresh from AIT and as soon as we returned It seemed as though everyone I fought with went elsewhere. And none of the PA's seemed to help with me my injuries other than ibuprofen and "i am not sure shrugs." I got pretty depressed and made some very bad decisions with no one who cared enough around to guide me in the right direction. To be honest I was completely terrified of being in the field or returning to Iraq. Now I have several problems, the most of which my right hand is pretty messed up especially the pinky. And cant afford reconstructive surgery. I tried to file my compensation packet. and now they have sent me a letter saying that my service is not honorable for VA purposes, and that if I disagree with this I need to write them a "letter of Disagreement" That is where I am at a loss of what this letter needs to include and etc. Any help at all is more than I have now. Thank you so much for you time and answers. K. Caywood

[pacmanx1]

[quote]Hi, My name is Kevin. I was in the Army active duty till last year when I got out on an OTH discharge which in some ways I deserved for my actions. But at the same time I feel that the things that happened could have been avoided if I had had proper help dealing with the things that were going on after being back from Iraq. I have injuries that I sustained while being in a infantry unit in Iraq along with several other problems. I went to Iraq fresh from AIT and as soon as we returned It seemed as though everyone I fought with went elsewhere. And none of the PA's seemed to help with me my injuries other than ibuprofen and "i am not sure shrugs." I got pretty depressed and made some very bad decisions with no one who cared enough around to guide me in the right direction. To be honest I was completely terrified of being in the field or returning to Iraq. Now I have several problems, the most of which my right hand is pretty messed up especially the pinky. And cant afford reconstructive surgery. I tried to file my compensation packet. and now they have sent me a letter saying that my service is not honorable for VA purposes, and that if I disagree with this I need to write them a "letter of Disagreement" That is where I am at a loss of what this letter needs to include and etc. Any help at all is more than I have now. Thank you so much for you time and answers. K. Caywood

[pacmanx1]

Hi, My name is Kevin. I was in the Army active duty till last year when I got out on an OTH discharge which in some ways I deserved for my actions. But at the same time I feel that the things that happened could have been avoided if I had had proper help dealing with the things that were going on after being back from Iraq. I have injuries that I sustained while being in a infantry unit in Iraq along with several other problems. I went to Iraq fresh from AIT and as soon as we returned It seemed as though everyone I fought with went elsewhere. And none of the PA's seemed to help with me my injuries other than ibuprofen and "i am not sure shrugs." I got pretty depressed and made some very bad decisions with no one who cared enough around to guide me in the right direction. To be honest I was completely terrified of being in the field or returning to Iraq. Now I have several problems, the most of which my right hand is pretty messed up especially the pinky. And cant afford reconstructive surgery. I tried to file my compensation packet. and now they have sent me a letter saying that my service is not honorable for VA purposes, and that if I disagree with this I need to write them a "letter of Disagreement" That is where I am at a loss of what this letter needs to include and etc. Any help at all is more than I have now. Thank you so much for you time and answers. K. Caywood

Since you got out last year, tell them about some of your experience that you went through from being deployed. Tell them that you feel that you have some type of depression (maybe PTSD). Try to explain to them in a letter what was going on with you at the time when you got out of the military. You may also want to look into trying to up grade your discharge to honorable. I am not sure if that is possible but you should at least look into it and try it. Others may chime in.

[carlie]

skc,

Welcome to Hadit.

I have merged your 2 posts.

I will send a shout out to someone that might offer you more help.

[Berta]

I am assuming that the letter you got resulted from a "character of discharge" determination by the VA and they have given you full appellate rights.

It depends on all of the circumstances whether the VA will grant a determination that is favorable to getting VA health care and/or compensation.

In this case the BVA denied the Character of Discharge claim as refers to the regulations they used:

http://www4.va.gov/vetapp10/files3/1024009.txt

In part:

"VA regulations provide that healthcare and related benefits

authorized by Chapter 17 of the Title 38 of the United States

Code may not be furnished based upon service concluding in a

discharge or release by reason of a sentence of general

court-martial. 38 C.F.R. § 3.360©(2). As stated above, the

appellant's active duty service concluded with discharge due

to the sentence of a general court- martial. The sentence

included a bad conduct discharge. The appellant's DD Form

214, Certificate of Release or Discharge from Active Duty

lists the nature of the appellant's service as "Bad

Conduct" with a narrative explaining the separation as due

to the sentence of "Court Martial". Due to the nature of

his discharge, the appellant may not receive healthcare and

related benefits as provided in Chapter 17, Title 38."

In this case however the BVA determined the veteran-sue to the entire circumstances- was eligible for VA health care and benefits:

"The medical evidence that has been obtained shows that the

Veteran's decision to go AWOL was motivated by an increase in

psychiatric symptomatology that was the result of several

traumatic events that occurred while in military service.

The doctors who have reviewed the Veteran's case have

concluded that these symptoms amount to compelling

circumstances; and therefore the Board concludes the

Veteran's character of discharge does not serve as a bar to

VA benefits."

ORDER

"The Veteran's discharge from service under other than

honorable conditions is not a bar to VA benefits, and the

appeal is granted."

http://www4.va.gov/vetapp10/files3/1021759.txt

If you had extenuating circumstances that VA is not aware of, you could respond to them in the NOD and tell them of these circumstances.

With limited info here as to the actual type of OTH you got, it is hard to opine on what evidence you need to overcome this decision.

The new PTSD regulations might help (in our PTSD forum) but still the decision must be appealed with a NOD.

You need to present an argument for anything they said in the decision that is incorrect.

I suggest you try to find a vet rep who would help with the NOD.You need to check if they listed and referred to all evidence that was available.

It can be done and has been done. It isn't easy but the time to start on this is now, when things are fresh in your mind.

You might well need buddy statements from your unit members, and make sure you have copies of your SMRs and service personnel records.

In many cases a favorable character of service determination relies on an upgraded discharge.

Did you have any severe IED injuries that could have contributed to making those bad decisions?

These are 2 of many sites on the web for upgrading bad paper.

http://usmilitary.about.com/cs/generalinfo/a/dischargeupg.htm

http://www.monterey.army.mil/legal/trial_defense/how_to_upgrade_your_discharge.pdf

Edited September 14, 2010 by Berta

[Wings]

x

x

x

Hello Veteran, I will chime in more in the mornin'. I am tired tonight and going to bed, but I gotta tell you I fought the review boards annd was able to upgrade my OTH to fully honorable. The military admitted they made a mistake. It happens. I had 2 terms of service: the first HON, the second was OTH.

Copy and Paste this VA Regulation --and we can talk more tomorrow. Hang in there. ~Wings

§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.