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  • Can a 100 percent Disabled Veteran Work and Earn an Income?

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    You’ve just been rated 100% disabled by the Veterans Affairs. After the excitement of finally having the rating you deserve wears off, you start asking questions. One of the first questions that you might ask is this: It’s a legitimate question – rare is the Veteran that finds themselves sitting on the couch eating bon-bons … Continue reading

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Flyfishingnut

Bad Paper Discharge

Question

I'm presently working with a Vietman Veteran, who has a "under conditions other than honorable".  He has been receiving medical care from a VA Healthcare Facility.  When we tried to apply for Disability Benefits, he was denied.  During our search, we discovered that he has receive a "Pardon", from President Ford.  However, the VA, is refusing to honor this Pardon, and is refusing any Disability Rating.  We have appealed and they want him to come to WA., for a furture appeal.  We applied and asked for a teleconference appeal, and was granted.  We are waiting for a date/time.

Just wondering if anyone has any exprience with this sort of appeal, and any suggestions.

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A person discharged under conditions other than honorable on the basis of an AWOL period of at least 180 days is barred from receipt of VA benefits "unless such person demonstrates to the satisfaction of the Secretary that there are compelling circumstances to warrant such prolonged unauthorized absence. " 38 U.S.C.A. § 5303(a) ; 38 C.F.R. § 3.12(c)(6).

Under 38 C.F.R. § 3.12(c)(6)(i-iii), the following factors are 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, and (ii) Reasons for going 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.  38 C.F.R. § 3.12(c)(6)(i).

Reasons for going AWOL which are entitled to be given consideration when offered by the claimant include family emergencies or obligations. The reasons for going AWOL are evaluated in terms of the person's age, cultural background, educational level, and judgmental maturity.  Consideration is given to how the situation appeared to the person 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 carefully and sympathetically considered in evaluating the person's state of mind at the time the prolonged AWOL period began. 38 C.F.R. § 3.12(c)(6)(ii).

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I recently had to overcome this obstacle myself. I have an OTH and I'm also fighting a VA claim. I recently completed the character of discharge process successfully. Initially they had me over the 180 day limit which wasn't true and easily disproved. I did, however, have to argue that my pattern of AWOL's was not a pattern of willful misconduct but rather signs of mental illness the military did nothing to address despite being asked. I have an attorney and at the time of the DRO hearing I also had a therapist, not a Psychologist or Psychiatrist, but an LCSW. Both of these people as well as my girlfriend walked into the DRO hearing. The attorney refuted the math and all the legal reasons for the denial. My therapist argued my insanity during the time period in question due to external factors and pressures. The DRO reached a favorable conclusion and now I'm twiddling my thumbs waiting for a C&P exam date to show up.

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