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Vietnam Vet Discharge Upgrade - some success?

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hawkfire27

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Hi Everyone, It has been a while since I have been active on the site. My husband is a Vietnam Veteran who has been 100% for PTSD since 1988. In 2014  we hired a lawyer to apply for a discharge upgrade from General Under Honorable Conditions to an Honorable with Medical Retirement. They flatout denied his initial claim in early 2015, citing that he willingly used a chapter 10 discharge and he had no recourse. Then the hagel memo came out, but it pertained specifically to veterans that may have had PTSD during service that received bad conduct discharges. Well through his lawyer we requested a reconsideration anyway in 2015. This week we received a letter from the ABCMR it was a copy of an advisory opinion from the Department of the Army, Office of the Surgeon General.

There is a bunch of unnecessary info so I will just post what is most important.

"3. In March 2015, Mr. Veteran requested that the board reconsider their March 2014 denial of his request for upgrade of his discharge to Honorable due to severe Post Traumatic Stress Disorder (PTSD). The Office of the Surgeon General was asked to determine if the applicant's military separation was due to PTSD or any other behavioral health condition.

6. The Board's prior decision was based partially on the lack of behavioral health documentation during Mr. Veteran's time in service.  The scarcity of documentation at this time was not unusual and his sustained and intense combat experiences clearly menet the stressor criteria for PTSD. His subsequent diagnosis and treatment for PTSD incurred through 30 months in Vietnam indicate that he more likely than not suffered from PTSD at the time of his separation."

 

Soooo... THis sounds really good for his discharge upgrade. At least to me it does. But my question is about VA compensation. He received his 100% in 2001 and it was backdated to 1988. During the hearing the adjudicator stated, "You really should be backdated to 1972 when you got out, but there is no documentation to prove this, so I will push it back as far as I can and that is when you Anxiety Disorder diagnosis was changed to PTSD in 1988." Therefore, my question is, does this ABCMR advisory letter constitute New and Material evidence, and what would the chances be of getting an earlier effective date? Should we just wait for the outcome of the ABCMR discharge upgrade request, or should we reopen his PTSD claim? Due to the backdating of his 100% award, is he covered by the 20 year protected rating rule, or do we chance his 100% rating being overturned if we ask for an earlier effective date?

Any help would be great, I'm looking for experience and opinions. Especially from Berta as I know she has excellent experience in retroactive and new and material evidence claims.

Thanks Guys!

 

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You might try hawkfire's profile to see if their email addy is open and if there is any status on that claim situation,but I think the above was hawkfire' last post here.

The Hagel Memo is explained here:

https://www.nytimes.com/2014/09/04/us/va-rules-may-enable-benefits-long-denied-to-vietnam-era-veterans.html?_r=1

https://fas.org/sgp/crs/misc/R43928.pdf

I could not find it at hadit.????

Hawkfire's husband's situation might be very different from yours.

We have had other ABCMR vets here.

 

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