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

[hesselgraverobber]

I think the MST explanation must've confused everyone. I've reformulated my argument since starting this thread and seeing your replies. Forget about the MST altogether and please let me know if this is an acceptable CUE: 

Quote

 

The March 2011administrative decision contains clear and unmistakable error in finding that my period of service from March 3, 2005 to June 6, 2010 is dishonorable for VA purposes and consequently denying my veteran’s compensation claim for combat related PTSD, depression, and insomnia. 

 

The law, as it was at the time, was incorrectly applied in finding only one period of service from March 2005 to June 2010 and characterizing it as dishonorable for VA purposes. At the time of the administrative decision my service personnel records, including copies of my DD-214 were of record. Additionally, my service personnel record reflecting my UCMJ violations which led to my discharge under other than honorable conditions were available for review. These records showed that I originally enlisted in the Army for a period of four years in March 2005.  My scheduled discharge date would have been in March 2009.  However, prior to the termination of my first period of service, I reenlisted for a second period of service in June 2007 for a period of six years, with a scheduled discharge date of June 2013. 

 

These records also showed that, I had UCMJ violations that led to my discharge in lieu of trial by court martial in June 2010. The first incident involving alleged UCMJ violations which led to my discharge was on July 19, 2009. Subsequent alleged UCMJ violations took place on June 24th, and 26th of 2009. All incidents of misconduct which led up to my discharge occurred after my initial period of service would have ended in March 2009. 

 

Despite the fact that no unconditional discharge may have been issued, a person shall be considered to have been unconditionally discharged or released from active military, naval, or air service when (1) the person served in the active military, naval, or air service for the period of time the person was obligated to serve at the time of entry into service; (2) the person was not discharged or released from such period at the time of completing that period of obligation due to an intervening enlistment or reenlistment; and (3) the person would have been eligible for a discharge or release under conditions other than dishonorable at that time except for the intervening enlistment or reenlistment.  See 38 C.F.R. § 3.313(c).  

 

I contend that I had two distinct periods of service and that the first period, from March 2005 to March 2009, constitutes honorable service for the purpose of eligibility for VA benefits.  As noted above, I originally enlisted for service in March 2005 for a period of three years, which would have expired in March 2009.  However, prior to the termination of my first period of service, in March 2009, I was separated for the purpose of an immediate reenlistment, which would have expired June 2013.  As such, my discharge to reenlist was conditional because it was issued prior to the date I was actually eligible for unconditional discharge.  

 

Therefore, under these circumstances, my entire period of service does not constitute one period of service and entitlement wouldn’t be determined by the character of the final termination of such period of active service, which in my case was terminated in lieu of trial by courts-martial. 

 

Had this clear and unmistakable error not been made, the outcome would have been manifestly different. I would have been deemed eligible for VA benefits for my first period of service and granted service-connection and received benefits, compensation and treatment for my combat related PTSD, depression, and insomnia which were a direct result of my service in Iraq from October 2006 to October 2007, well within my period of eligible honorable service, which has yet to be recognized. As I was discharged in June 2010 and filed a VA Form 21-526, Veteran’s Application for Compensation and/or Pension, less than a year from my discharge, the effective date of my service connection for PTSD, depression, and Insomnia should be June 7th, 2010, the day after my discharge from active duty. 

 

Please reverse the erroneous administrative decision and schedule C&P exams for combat related PTSD, depression, and insomnia. 

 

Medical records for the treatment of these conditions were available and on record at the time of my original claim. Treatment records for these conditions since the time of the original claim are attached. 

 

 

Thank you greatly.