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?

[d1ray]

It also sounds like a cod might have already been done , but all the information isn't here. If you have ever applied for a home loan or education benefits then a cod would have already been made. Not sure with the information where you stand in the process.

I have applied for a VA home loan and got it back in 1986 but it looks like the requirements are different and they allow for a home loan even though I have an undesirable. If there was a cod made at that time, I never got any information as to what that decision was.

[63SIERRA]

there was another caswe on this forum where a guy had 2 different enlistments with one honorable and one not, and he was filing claims, so I say go for it,.

Edited October 30, 2013 by 63SIERRA

[Philip Rogers]

d1ray - I think you have valid claims but it will take a long time and much work to get justice. I feel you could have some retro stuff, also. You should go after them. jmo

pr

[d1ray]

Thanks for all the input! I finaly got a copy of my file and reviewed the information therein. JT24usn is correct when he states "Well technically you didn't fulfill your first enlistment because your issues started before the true separation date of when the first enlistment would have been complete. 1/30/74 (four years). This means that your whole enlistment would be inclusive as OTH and a bar to benefits but eligible for any healthcare benefits/treatments deemed to be sc. You would be held out under 38 cfr 3.12d(4). Willful an persistent." That is exactly how my Administrative Decisions have expained in the past.

It appears as though I am in a catch 22 situation. Initially,I thought and was told that 38 CFR 3:12a would allow me to be eligible. I have since learned that it ony aplies to veerans who enered service after 1980. That strikes me as being disparant treatment. I would like to know the reasoning for that rule. Can someone exlain the logic?

In light of the suit by Vietnam Veterans with PTSD (http://watchdogblog.dallasnews.com/2014/03/claiming-ptsd-vietnam-war-veterans-sue-for-military-benefits-and-discharge-upgrades.html/?nclick_check=1), I thought of trying to become part of the class actio suit. I have been diagnosed with PTSD as a result of exeriences before and in Vietnam aboard carriers. I was told that since I was in Texas, i could not join. The five plaintiffs include three Marine veterans and two Army veterans from five states — California, Connecticut, Georgia, Indiana and New York. The three organizations that joined the lawsuit are: Vietnam Veterans of America (VVA), Vietnam Veterans of America Connecticut State Council (VVA-CT), and the National Veterans Council for Legal Redress (NVCLR). I am sure there are others like me out there who would like to get this changed. The estimate is 500,000. Who can I get to help in Texas or start a national movement?

[Berta]

Have you ever taken steps with the BCMR to get the discharge changed? It can be done:

If you use our searxch feature here or on Google there is a lot of info as to getting OTHs upgraded.

Not enough info here to determine your chances, but it is also worth while to do all you can to get this changed.

I went to the link you posted but they wanted me to subscribe to the newspaper before I could read it .......is this a recent class action lawsuit or the old one which was lost.

Edited March 6, 2014 by Berta

[d1ray]

This stems from the Civ. No.: 3:11-cv-00641 (AWT) that was filed by John Sheperd Jr. This how the article reads on ABC news;

The U.S. military has failed to upgrade the discharges of Vietnam veterans who developed post-traumatic stress disorder, resulting in stigma and loss of benefits, according to a federal lawsuit filed Monday.

Five Vietnam veterans and three veterans organizations are suing the Army, the Navy and the Air Force in Connecticut. The veterans say they suffered PTSD before it was recognized and were discharged under other-than-honorable conditions that made them ineligible for benefits.

The lawsuit, which seeks class-action status to represent tens of thousands of veterans, says the military has systematically denied applications for upgrades involving evidence of PTSD.

"Unfortunately, the Pentagon has refused to correct the decades of injustice experienced by tens of thousands of veterans who suffer from PTSD but were discharged before it was a diagnosable condition," V Prentice, a law student intern in the Veterans Legal Services Clinic at Yale Law School, which represents the plaintiffs, said in a news release. "This action seeks to compel appropriate action by the military and to finally secure justice for these veterans."

Lt. Col. Damien Pickart, a Pentagon spokesman, said the department doesn't comment on pending litigation. The Department of Defense has said the agency is committed to addressing concerns related to PTSD and has taken numerous steps, including conducting PTSD assessments of service members at military treatment facilities.

A spokesman for the U.S. Attorney's office also declined comment.

Conley Monk, a New Haven resident who served in the Marine Corps in Vietnam, developed PTSD after suffering traumatic events including a barrage of enemy mortar rounds and the gassing of his unit, according to the lawsuit. He later experienced flashbacks and hyper vigilance when he was stationed in Japan and went absent without leave, the suit said.

"When I was in high school, I worked at the VA hospital in the kitchen as a dishwasher. But after I came home from Vietnam, I couldn't even get my job back as a dishwasher because of my bad paper," said Monk, one of the plaintiffs. "My discharge status has been a lifetime scar. If I were discharged today, my PTSD would be recognized and treated and I wouldn't be punished for having a service-connected medical condition."

A proposed class-action lawsuit over the issue was filed in 2012 as part of a claim involving a Vietnam veteran, but that veteran's case was settled. The class-action part of the case was not decided, the law students said.

Since 1993, only 4.5 percent of about 375 applications for discharge upgrades involving PTSD have been granted for Vietnam veterans, according to the lawsuit, which seeks what it calls consistent and medically appropriate standards for considering the effects of PTSD when determining whether to upgrade a discharge.

"Tens of thousands of brave and honorable Vietnam veterans with post-traumatic stress have been doubly injured by the black mark of an other than honorable discharge, resulting in unjustly denied support, services and benefits," said U.S. Sen. Richard Blumenthal, D-Conn. "These heroic veterans are long overdue present day appreciation of modern mental health in the timely review of their discharge upgrade appeals."

I just viewed eBenefits and noticed that they have closed my claim. I should have a denial letter in the mail today for my claim.