hypertension Eligilibity And Effective Date

[d1ray]

I am a Vietnam Veteran. I was referred to the site by my son-in-law's brother. I got interested in the sight because of the circumstance I find myself in and the volume of forums that address similiar situations. After serving three years on a four year enlistment, I re-enlisted in the waters of Vietnam. For that period of service, I received an Honorable discharge on 26 Jan 73 with a DD-214 showing this. My new enlistment, under the SCORE program started 27 Jan 73. Six months later, I was discharged with an Undesirable (OTH). I have tried many times to get this corrected without success.

The reason for the OTH was drug usage. I was sent to a special court martial where the sentence was 30 days in the brig and a temporary reduction in rank from E-5 to E-4 and a find for six months. Shortly there after, I was again found in possession and this time was given a captain's mass at sea on the way back to the states from the PI. That sentence was 30 days in the brig, another temporary reduction in rank from E-4 to E-3 and fined for another six months. Somewhere along the line, my case went to an administrative discharge review board. I received no legal advice on my rights or procedures. Upon release form the brig we were in home port of Alemeda. I was immediately transferred to TI and discharged 3 weeks later with the Undesirable based on the administrative board.

About 5 months later, I enter federal employment where I claimed the 5 point veteran preference by honestly answering the questions on the SF-171 and giving my correct dates of service. An investigation was done where they alledged I lied but, after good representation I was allowed to remain employed, gaining career status, until I resigned in 1980 and moved back to Texas. Fast forward to 1990 where I am re-instated with the VA automation center.

My tenure with the VA was spotted with substance abuse and eventually I was referred to the VA clinic under the employee assistance program. They refused to see me as an eligible veteran and reported it back to my personnel officer. They stated that although I have two discharges, it was considered one continuous period of service. My job fired me for leave abuse and the responses made on my application regarding my discharge even though I answered truthfully.

In the past, I have tried to seek help from the VA for possible PTSD and substance abuse. Each time, they have told me I was "ineligible for VA services" without ever making a COD determination. The first time was with regard to the above mentioned incident and again in 2003 where I received a one paragraph letter stating I was ineligible. Never was I given a right to reconsideration for even the honorable period!

A couple of months ago, I made another attempt by showing both discharges. Suddenly, I am being seen for medical and I have filed for sevice connected disability immediately for PTSD and substance, asthma bronchitis and hypertension. I believe i should have ben seen the first time and allowed to be evaluated for any S/C disability but was turned away instead.

My understanding is that since I have one DD-214 that shows a discharge date one day before the start date of the OTH, that it is considered a break in service. That is not how I read the CFR. For a break in service, there needs to be 2 days, not one as is my case.

In either case, I am now being seen and hope to have an upcoming C & P and possibly a FDC determination. My question is, should my eligibility remain, can I declare an earlier effective date back to the first I tried to be seen but was denied? Could/would this be considered a 'CUE' since all the denials were with proper consideration and I was never given the right to reconsideration?

[Philip Rogers]

Is there documentation of your earlier claims? And their denials?

pr

[JT24usn]

Read up on 38 cfr 3.12 c and d

Your discharge would have been decided under 3.12d(4)jmho

§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 estalish 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)

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.

[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]

Edited October 27, 2013 by T8r

[JT24usn]

@My understanding is that since I have one DD-214 that shows a discharge date one day before the start date of the OTH, that it is considered a break in service. That is not how I read the CFR. For a break in service, there needs to be 2 days, not one as is my case."

A cod would have had to be made to break the two periods of service. Problem lies with whether you reupped before meeting full obligation of first contract and when your issues started. If the started before the day you first obligation was up then they may tie both periods together. If it started the day after your first obligation was up the they may be able to do a conditional discharge and make the first period honorable for va purposes. Again, jmho.

[free_spirit_etc]

This is actually something I was reading the other day where they were questioning whether a widow was eligible for DIC because her spouse had several consecutive enlistments and a DD214 for each one. So it is a bit different topic, but it does have some interesting information on re-enlistments.

www.va.gov/ogc/docs/2000/prc08-2000.doc

VAOPGCPREC 8-2000

July 25, 2000

Subj: Status of Surviving Spouse to Receive Death Benefits

"1. These conclusions have for many years been reflected in VA regulations, now codified at 38 C.F.R. § 3.13, and titled "'Discharge to change status." In general, under section 3.13(a), a discharge to reenlist, issued prior to the date an individual is eligible for unconditional discharge based on length of service, is considered a conditional discharge. Section 3.13(b) provides that, under such circumstances, the service member's entire period of service will be considered one period of service and entitlement to veterans' benefits will be determined based on the character of the final termination of that service period. We conclude that service members who received conditional discharges to reenlist and who were subsequently discharged under conditions other than dishonorable may, under 38 C.F.R. § 3.13(a) and (b), be considered to have had one period of service for the period of their consecutive enlistments. This would hold true for purposes of determining eligibility for DIC pursuant to 38 U.S.C. § 1304(l) and 38 C.F.R. § 3.54©(1), or for other compensation or pension benefits.

2. We do not believe that this analysis is affected by 38 C.F.R. 5 3.13©. Under 38 C.F.R. § 3.13, as in effect prior to the enactment of Pub. L. No. 95-126, § 3, 91 Stat. 1106, 1108 (1977), if a service member was discharged to reenlist, prior to completing the original obligated period of service, and the service member's ultimate discharge was under dishonorable conditions, that discharge would be con- trolling for purposes of determining entitlement to VA benefits even though the service member had served honorably throughout the original obligated period of service. In order to correct this perceived inequity and restore such service members who were ultimately discharged under dishonorable conditions to the position they would have been in had they not agreed to extend their active duty service prior to completion of their original service commitment, Congress amended the law to treat the honorable completion of the original obligated period of service as though it had resulted in an unconditional discharge or release. H.R. Rep. No. 580, 95th Cong., 1st Sess. 18 (1977), reprinted in 1977 U.S.C.C.A.N. 2844, 2861. In order to accomplish this, Congress, in Pub. L. No. 95-126, expanded the definition of the term “discharge or release" under 38 U.S.C. § 101(18) to include "the satisfactory completion of the period of active . . . service for which a person was obligated at the time of entry into such service in the case of a person who, due to enlistment or reenlistment, was not awarded a discharge or release from such period of service at the time of such completion thereof and who, at such time, would otherwise have been eligible for the award of a discharge or release under conditions other than dishonorable." In order to implement section 3 of Pub. L. No. 95-126, VA added a new subsection © to 38 C.F.R. § 3.13, providing that a service member will be considered to have been unconditionally discharged, even though no unconditional discharge may have been issued, if the member: (1) served the full period the member was obligated to serve at the time of service entry; (2) was not dis- charged at the time of completing that period due to an intervening reenlistment; and (3) would have been eligible for a discharge under conditions other than dishonorable at that time except for the intervening reenlistment. Section 3.13© suggests that, under these circumstances, the initial obligated period of service and the reenlistment period be- yond the initial obligated period may be considered distinct periods of service. Its regulatory history, however, indi- cates that that section should be construed to be applicable only when the last period of service is terminated under dishonorable conditions.[1] Thus, we do not believe that Section 3 of 38 C.F.R. § 3.13©, which has the effect of establishing a constructive unconditional discharge, is applicable because that regulation should only be construed to apply in cases in which a service member was ultimately discharged under dishonorable conditions.

The regulatory history of 38 C.F.R. § 3.13© indicates that VA intended to depart from the then-existing provisions of section 3.13 only to the extent necessary to fulfill the objective of Pub. L. No. 95-126 to provide relief to persons who reenlisted under conditional discharges and were ultimately discharged under dishonorable conditions. First, in amending section 3.13 to reflect section 3 of Pub. L. No. 95-126, VA retained subsections (a) and (b) of the then-existing regulation, making subsection (b) applicable "[e]xcept as provided in paragraph © of this section." Second, the transmittal sheet signed by the Deputy Administrator, which accompanied the amendment of section 3.13 indicates that subsection © was intended to apply '[o]nly when it is determined that the whole period of service was terminated under dishonorable conditions.' Veterans Administration Compensation and Pension Transmittal Sheet 641, pp. v and vi (Apr. 5, 1978) (emphasis added). While this transmittal sheet is not regulatory in nature, it does give a clear indication of the contemporaneous construction of section 3 of Pub. L. No. 95-126 by the agency charged with its implementation. Pub. L. No. 95-126 and 38 C.F.R. § 3.13© were intended as liberalizing amendments to avoid a harsh result when a vet- eran who had extended his or her service and had honorably completed an initial obligated period of service received a dishonorable discharge from a subsequent period of service. They were not intended to change the law as it applied to veterans who served honorably throughout their service.

The regulatory history of 38 C.F.R. § 3.13© indicates that VA intended to depart from the then-existing provisions of section 3.13 only to the extent necessary to fulfill the objective of Pub. L. No. 95-126 to provide relief to persons who reenlisted under conditional discharges and were ultimately discharged under dishonorable conditions. First, in amending section 3.13 to reflect section 3 of Pub. L. No. 95-126, VA retained subsections (a) and (b) of the then-existing regulation, making subsection (b) applicable "[e]xcept as provided in paragraph © of this section." Second, the transmittal sheet signed by the Deputy Administrator, which accompanied the amendment of section 3.13 indicates that subsection © was intended to apply '[o]nly when it is determined that the whole period of service was terminated under dishonorable conditions.' Veterans Administration Compensation and Pension Transmittal Sheet 641, pp. v and vi (Apr. 5, 1978) (emphasis added). While this transmittal sheet is not regulatory in nature, it does give a clear indication of the contemporaneous construction of section 3 of Pub. L. No. 95-126 by the agency charged with its implementation. Pub. L. No. 95-126 and 38 C.F.R. § 3.13© were intended as liberalizing amendments to avoid a harsh result when a vet- eran who had extended his or her service and had honorably completed an initial obligated period of service received a dishonorable discharge from a subsequent period of service. They were not intended to change the law as it applied to veterans who served honorably throughout their service."

[Berta]

Boy it took me some time to find a recent BVA decision that might help you:

“In summary, the appellant is considered to have had two 
separate periods of active duty.  The period from November 
24, 1976 through May 23, 1979, was honorable, active service 
and VA benefits are allowable for this period of service.  
The period from May 24, 1979 through December 30, 1983, was 
under other than honorable conditions and VA benefits 
(exclusive of benefits under Chapter 17, Title 38, United 
States Code) are not allowable for this period of service.”
The veteran had re enlisted the day after his discharge...One day.

“ORDER

The character of the appellant's discharge from service for 
the period from November 24, 1976 through May 23, 1979, does 
not constitute a bar to VA benefits; the character of the 
appellant's discharge from service for the period from May 
24, 1979 to December 30, 1983, constitutes a bar to VA 
benefits (exclusive of benefits under Chapter 17, Title 38, 
United States Code).”

http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp01/files01/0104273.txt

However, this veteran had received a COD from the VARO that he appealed to the BVA.

“Somewhere along the line, my case went to an administrative discharge review board. 
 I received 
no legal advice on my rights or procedures. “ 

Sounds like the Kangaroo Military courts of the past.

Do you have a copy of those proceedings?

"In the past, I have tried to seek help from the VA for possible PTSD and substance abuse. 
 Each time, they have told me I was "ineligible for VA services" without ever making a 
COD determination.  The first time was with regard to the above mentioned incident 
and again in 2003 where I received a one paragraph letter stating I was ineligible. 
 Never was I given a right to reconsideration for even the honorable period! “

Did you formally file a claim for PTSD.VA makes the COD when a claim triggered them to.

“A couple of months ago, I made another attempt by showing both discharges. Suddenly, I am being seen for medical and I have filed for sevice connected disability immediately for PTSD and substance, asthma bronchitis and hypertension.

OK you did file a formal claim!.... and that will trigger the COD.

“I believe i should have ben seen the first time and allowed to be evaluated for any S/C disability but was turned away instead. “

I do too. There were countless incountry Vietnam vets who turned to substance abuse while in service due to the Vietnam War.

Do you have a proven stressor event? And did that stressor occur during your first period of service?

“In either case, I am now being seen and hope to have an upcoming C & P and possibly a FDC determination. My question is, should my eligibility remain, can I declare an earlier effective date back to the first I tried to be seen but was denied? Could/would this be considered a 'CUE' since all the denials were with proper consideration and I was never given the right to reconsideration?”

It might possibly be the basis for a CUE claim...if you had ever filed a previous formal disability claim .

Once the VA makes the COD, Character of Determination, and hopefully, they grant you eligibility based on the Honorable period of service you had, then we can look over the decision and better advise you on the potential of a CUE claim,if a formal claim was denied by VA in the past. Hold onto the brief letter they sent to you in 2003.

Are you able to scan and attach that letter here? (Cover the personal stuff, name address)

If the VA denied a past formal claim, can you scan and attach that denial here too?

Thank you for your service !.

During and after the Vietnam War drug and alcohol abuse was not even considered to be possibly symptomatic of PTSD.....

Things have changed.

There are some Bad Paper lawyers on the net who specialize in situations like yours. At this point however, maybe best to see what VA says as to the COD when they adjudicate the claim..

When you receive a VCAA letter, or if you have gotten already, that letter should tell you what other evidence they will need.

Edited October 27, 2013 by Berta

[d1ray]

Is there documentation of your earlier claims? And their denials?

pr

Yes!!! I have lots of documentation back to 1995 of all of the denials.