ptsd CUE regarding COD 2011 Admin Decision

[hesselgraverobber]

Hi there. First time posting. Been lurking for a while, reading up on what I thought was relevant to my claim. I’ve found the CUE section here to be very helpful so far and I’m excited at the prospect of finally figuring out what to do about my claim. Everyone I’ve spoken to thus far has been … well, they just don’t care about it as much as I do obviously… which translates into them not knowing what the hell they’re talking about and ends with them looking at me like I have two heads. 

 

 

Here are the facts (Dates are redacted/ non-specifc for privacy.):

 

1. I enlisted in 2005 for 4 years with an original discharge date of March 2009.
2. While on my first deployment, in 2007, I re-enlisted for 6 years and received a new discharge date of 2013. I also received a DD 256- Certificate of Honorable Discharge. 
3. I was discharged in 2010 with an UOTH conditions discharge - Chapter 10 - In lieu of trial by court martial for misconduct that began in July 2009 during my 2nd deployment. 
4. One month after I separated, I went to my local VA and was told I was ineligible and to submit a claim to trigger a character of discharge review. I filed a claim that same day and went home rather upset as it was my understanding that I had “vested” my benefits by re-enlisting and really needed help for PTSD that was combat related stemming from my first deployment. 
5. In 2011, my claim was denied due to an admin decision that my entire service from 2005-2010 was  Dishonorable for VA purposes. There was no mention of my first term of service at all. The reasons and bases says that I enlisted in 2005 with a discharge date of 2010, which is just plain untrue. 
6. My DD214 states in block 18 Remarks: “CONTINUOUS HONORABLE ACTIVE SERVICE: 200503XX-2007XXXX // IMMEDIATE REENLISTMENTS THIS PERIOD - -  2007XXXX-2010XXXX // (DELETED) // SERVED IN A DESIGNATED IMMINENT DANGER PAY AREA// SERVICE IN IRAQ 2006XXXX-2007XXXX // SERVICE IN IRAQ 2008XXXX-2009XXXX // (DELETED) // MEMBER HAS COMPLETED FIRST FULL TERM OF SERVICE // NOTHING FOLLOWS”
7. I  was able to use my Post 9-11/ GI Bill at a rate of 80% without any problems. 

 

 

• This is a CUE right?
• How do I go about wording this and on what form? 
• I would like my effective date to be the day after I separated, and I believe that I’m entitled to that. Please confirm? 
• Since my claim was stopped due to the Admin Decision, I wasn't given a C&P exam or rated for the PTSD compensation I applied for — can I submit new evidence for my PTSD, along with the CUE claim? Or will that constitute new evidence and material to re-open the claim? 
• I would like to do it the best way to make the effective date the earliest it can possibly be. 
• I expect the CUE to cover just that first term of service and the combat medic related PTSD that I acquired during my first deployment. However, I also now have new evidence related to my second term of service, in which I received an OTH discharge, to report that would significantly change the outcome of that COD as well. The new evidence is my final admittance to myself and reality in general that I was raped during my second deployment. I did not tell my chain of command at the time, although I did tell my then husband at the time and my mother and current husband know now. This rape was what caused the misconduct for which I was separated in 2010. The rape also caused a lot of damage to my already damaged psyche and I just fell apart. I’m hesitant to add this information at this point with the CUE on the table, because I don’t want it to mean that I wont get the earlier effective date for the combat medic related PTSD. Is now the time to report that information as well? I’ve been seeing therapists for years about both the combat and MST related PTSD. I just don’t know when or how to submit/organize this. 

 

thank you, any info at all helps. 

 

-HG 

 

fuckin hooah 

 

Edited August 16, 2016 by hesselgraverobber
font was too small

[broncovet]

The VA has a particular "order" in which things are done.  

1.  First is service connection.  Since you apparently are not service connected, you need to accomplish this, first.  Work on making sure your "big 3" are documented: Current diagnosis, in service event or aggravation, and nexus.  

2.  Next, is effective date.  An effective date is irrelevant if you are not service connected.  

So, before you work on CUE, or effective dates, work on service connection first.  Then, you can file a cue to try to get an earler effective date, should that be appropriate at that time.  

    This said, I completely get why you would want to go ahead and file a cue, get benefits at an earlier date.  However, you simply need to get service connected, a disability percentage, and effective date in that order.  There is no shortcut to that.  

    If you have little or no income, then you should consider applying for pension if you have not already, since it sounds like you served in wartime.  If you are making 1200 a month or so pension, it makes waiting on your benefits much easier, as 1200 per month is better than 1199 per month MORE than nothing.  I wish I would have applied for pension much, much earlier...I had no idea it would take me more than 7 years to get my benefits.  In fact, its been 14 years and I still dont have them all, Im currently in appeal at the CAVC.  

[Berta]

I think one problem here is that the VA might have considered the re enlistment as a 'continuous' period of service,meaning they are not considering the first period of service as HD....

But "I  was able to use my Post 9-11/ GI Bill at a rate of 80% without any problems." 

This is very problematic:

1. "In 2011, my claim was denied due to an admin decision that my entire service from 2005-2010 was  Dishonorable for VA purposes. There was no mention of my first term of service at all. The reasons and bases says that I enlisted in 2005 with a discharge date of 2010, which is just plain untrue. "I will try to find something at the BVA on this, because you re upped while still within the first period of service..

 

When did the COD decision come? Did they give you full appeal rights?

Did you act on appealing this decision within the first year after it arrived?

The Hagel Memo has changed situations like this for some veterans....but not enough and I believe there is legislation in Congress to bolster the Memo's guidelines up.

There is plenty under a google search on the Hagel Memo.

Did the VA completely deny you VA health care?

Lots to read here but it all explains the Hagel Memo

 

http://community.hadit.com/topic/59175-yale-law-school-vets-clinic-re-oth-vets/

(this link is about a radio show I did with Jerrel Cook and an attorney from the Yale Law School Clinic on the Hagel Memo....I will try to find the show in our archives here) 

https://vetlawandbenefits.org/2015/12/07/achieving-justice-for-veterans-with-pstd-and-bad-paper-some-progress-but-a-long-way-to-go/

https://ftwvetnews.wordpress.com/2016/03/09/dod-improves-discharge-upgrade-process-for-veterans-with-ptsd/

I am concerned about the 2011 date of that decision and what came after that.

It seems you do have New and Material evidence, to re open the claim with..

but hopefully others will opine on this as well..

I am under the impression that a bad paper discharge , with a separate Honorable discharge a DD 214 ,not a 256, even if only one day occurred between the first discharge and the additional new enlistment ,is what can make the initial period of service, one that warrants a HD, overcome any bad paper from the second , separate period of service. 

 

 

 

Edited August 16, 2016 by Berta

[hesselgraverobber]

1 hour ago, broncovet said:

The VA has a particular "order" in which things are done.  

1.  First is service connection.  Since you apparently are not service connected, you need to accomplish this, first.  Work on making sure your "big 3" are documented: Current diagnosis, in service event or aggravation, and nexus.  

2.  Next, is effective date.  An effective date is irrelevant if you are not service connected.  

So, before you work on CUE, or effective dates, work on service connection first.  Then, you can file a cue to try to get an earler effective date, should that be appropriate at that time.  

    This said, I completely get why you would want to go ahead and file a cue, get benefits at an earlier date.  However, you simply need to get service connected, a disability percentage, and effective date in that order.  There is no shortcut to that.  

    If you have little or no income, then you should consider applying for pension if you have not already, since it sounds like you served in wartime.  If you are making 1200 a month or so pension, it makes waiting on your benefits much easier, as 1200 per month is better than 1199 per month MORE than nothing.  I wish I would have applied for pension much, much earlier...I had no idea it would take me more than 7 years to get my benefits.  In fact, its been 14 years and I still dont have them all, Im currently in appeal at the CAVC.  

Thanks for your reply broncovet. Wow, 14 years? It's been 6 in my case, so in a way I'm grateful I haven't gone past a decade, but it's getting close. I keep seeing CAVC on here and I'm not sure what that abbreviation means. Do you mind enlightening me?

The thing about my service connection is that when I originally filed my VA claim in 2010, VARO had all the information necessary to service connect me and didn't, so that would be a part of the CUE as well, no? I have my C-file & I really feel like diagnosis, event, and nexus were already there -- but I wasn't given a C & P exam for the PTSD & my claim was closed prematurely*, in March 2011 because of the admin decision saying that I was Dishonorable for VA Purposes. But you're saying that I should first create a new claim before CUEing? Wouldn't the VA just see that previous admin decision and say I was ineligible to apply for VA benefits? That's what a certain, un-named VSO told me. Grrr. I swear, I hear a different set of advice from everyone. Wading through it all has been quite a chore, but I feel like I'm finally getting a handle on what needs to be done. So thanks for the help. 

*I say prematurely, because shouldn't you have a year to submit all the evidence necessary for a claim? I submitted my claim in June 2010. So, technically, I still would've had 3 months left on my claim, had they not gotten the admin decision which barred me from benefits, no?

Also, I looked up the pension info. Can't believe I didn't know that existed before. Thank you!  Thankfully, right now, with my husband and I's combined income, we make too much to be considered low enough income, but it's a good resource to have for the toolkit. I might be able to help someone else out with that info or use it in the future. Goodness knows I could've used it so many times in the past 6 years. 

I'm completely ready and willing to file a new claim, but if it has some of the matching information that was in my first claim, will they consider this to further finalize the decision on it... or effective date is a separate issue that I can CUE on later without a new claim further finalizing any decision the VA has already made? 

Thanks for your help!

[Berta]

This is a link to the SVR  radio I mentioned, with the attorney from Yale Law School Clinic...and we discussed the Hagel Memo

http://www.blogtalkradio.com/haditcom/2014/11/05/jennifer-mctiernan-yale-law-school-veterans-clinic

"It's been 6 in my case, so in a way I'm grateful I haven't gone past a decade, but it's getting close. I keep seeing CAVC on here and I'm not sure what that abbreviation means. "

Do you mean your claim is still in an active appeal status? Has it been forwarded to the BVA (Board of Veterans Appeals?)

CAVC is Court of Appeals for Veterans claims.

If one is denied at the BVA, they had a limited period of time to file  a NOA (Notice of Appeal) with the CAVC.

*"I say prematurely, because shouldn't you have a year to submit all the evidence necessary for a claim? I submitted my claim in June 2010. So, technically, I still would've had 3 months left on my claim, had they not gotten the admin decision which barred me from benefits, no? "

The administration decision they made caused them to legally not go any further with the claim.

But you could have appealed it. 

If you google

'M21-1MR Bad paper discharges and COD' the first 2 DOCs or Pdfs from the VA will pop up and there was a 2012 change to one of them.

If the only reason they gave you was due to the reason here:

"In 2011, my claim was denied due to an admin decision that my entire service from 2005-2010 was  Dishonorable for VA purposes. There was no mention of my first term of service at all. The reasons and bases says that I enlisted in 2005 with a discharge date of 2010, which is just plain untrue. "

they might have been wrong in interpreting M21-1MR.

Can you give us the legal citations they used for that statement? Is that statement exactly how the VA worded it?

Would you consider scanning and attaching the COD decision here,as to their reason and bases and the evidence they stated  (Cover C file, name, address, prior to scanning it)

[broncovet]

Did you apply for a "discharge upgrade", and if so, what were the results?  

CUE is not a substitute for the filing of a NOD if you dont do file the NOD in a year.  

The first step would be to apply for the discharge upgrade, and, if this has been denied, you should consider appealing it.  

Also, when was the "Hagel Memo" in relation to the time you applied  for a discharge upgrade?  It may be something as simiple as you asking for a reconsideration per the Hagel Memo.  Did you contact the Yale Law school about your issue, since it may well apply to you?  

[hesselgraverobber]

 

 

6 hours ago, Berta said:

I think one problem here is that the VA might have considered the re enlistment as a 'continuous' period of service,meaning they are not considering the first period of service as HD....

But "I  was able to use my Post 9-11/ GI Bill at a rate of 80% without any problems." 

This is very problematic:

1. "In 2011, my claim was denied due to an admin decision that my entire service from 2005-2010 was  Dishonorable for VA purposes. There was no mention of my first term of service at all. The reasons and bases says that I enlisted in 2005 with a discharge date of 2010, which is just plain untrue. "I will try to find something at the BVA on this, because you re upped while still within the first period of service..

 

When did the COD decision come? Did they give you full appeal rights?

Did you act on appealing this decision within the first year after it arrived?

The Hagel Memo has changed situations like this for some veterans....but not enough and I believe there is legislation in Congress to bolster the Memo's guidelines up.

There is plenty under a google search on the Hagel Memo.

Did the VA completely deny you VA health care?

Lots to read here but it all explains the Hagel Memo

 

http://community.hadit.com/topic/59175-yale-law-school-vets-clinic-re-oth-vets/

(this link is about a radio show I did with Jerrel Cook and an attorney from the Yale Law School Clinic on the Hagel Memo....I will try to find the show in our archives here) 

https://vetlawandbenefits.org/2015/12/07/achieving-justice-for-veterans-with-pstd-and-bad-paper-some-progress-but-a-long-way-to-go/

https://ftwvetnews.wordpress.com/2016/03/09/dod-improves-discharge-upgrade-process-for-veterans-with-ptsd/

I am concerned about the 2011 date of that decision and what came after that.

It seems you do have New and Material evidence, to re open the claim with..

but hopefully others will opine on this as well..

I am under the impression that a bad paper discharge , with a separate Honorable discharge a DD 214 ,not a 256, even if only one day occurred between the first discharge and the additional new enlistment ,is what can make the initial period of service, one that warrants a HD, overcome any bad paper from the second , separate period of service. 

 

 

 

Berta, thank you for your reply! Yes, they are viewing my service as continuous, however, https://www.swords-to-plowshares.org/guides/b2b says that doesn't matter and I should be able to have that first term recognized as honorable. 

I did not appeal because I actually didn't know of this decision until recently. They sent the notifications to an address I didn't live at and it was returned to them. So no, I did not appeal. I have record of the returned mail though. 

I think M21-1MR, Part III, Subpart v, Chapter 1, Section B covers this: 

d.  When it is Not Necessary to Make a COD Determination 

It is not necessary to make a COD determination for VA claim purposes

 

before the claimant applies to VBA and places the matter at issue, or

if there is a separate period of honorable service, which qualifies the person for the benefits claimed

 

Exception: A COD determination may be made prior to a claimant’s an application for VBA benefits, as noted in M21-1MR, Part III, Subpart v, 1.B.5.f

 

Note: If there is any question regarding which period of service would qualify the person for the benefits claimed, a COD determination must be made before a rating decision can be completed. 

there's even an example in section 9 specifically about re-enlistements 

 

Vetsnet_CandP_Redacted.pdf

DD214_Redacted.pdf

AdminDecision.pdf

Edited August 16, 2016 by hesselgraverobber
add attachments, fix formatting