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Are adjudicators under a different set of rules when adjucating a claim


anglersd

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I recieved my denial letter here recently and I was floored by there reasons and bases for denying my claim. They left out relevant facts and twisted everything to fit there narrative for there denial. When I contacted my DAV, NSO he told me the "adjudicators are under a different set of rules". I asked him aren't they suppose to be following the M21 manual and he asked me where I was reading the manual and I told him online at the department of veterans affairs. He says you can't go by that nor do they go by that! What do they have it online for then?
 

relevant facts were left out on the approximate cause of this accident I was in. She turned in front of me. They claim I was legally intoxicated. Upon entrance to the emergency room nurse stated "slight odor of alcohol", 3+ hours later another nurse states "strong odor of alcohol". 93mg/dl according to the blood work but no actual BAC content noted anywhere. they say it was .09%, I don't argue with that except it isn't stated anywhere in my records of the such. This accident was in 83 and under SD law .10% was the limit under HB 1034p. You'll notice in the bill I didn't even rise to the presumptive standards back then. What law do they have to follow.

I was discharged in July of 83 under honorable conditions and it was upgraded in 85 by the ABCMR to honorable. my original release date would have been Oct. of 83, the ABCMR gave me back my original release date. this accident was in sept. of 83. they state in there reasons and basis the outline of my correction of records and basically told me I wasn't under military control at the time. My DD214 says I was active duty at the time per the ABCMR correction. I know they are messing with me on this issue and I'm arguing that in my appeal.

My old DD214 was to be deleted from the file but was left in there by mistake and I'm just now getting this cleared up with congressional assistance. I feel the VA is using my old DD214, that isn't suppose to be there, in order to make and determination of LOD/WM. No LOD/WM was made back then and I know the VA isn't the proper service dept. to make that decision, only the DOA is.

Active duty:

Citing Cahall v Brown,7 Vet.app. 232,237 (1994). "Service department findings are binding on VA purposes of establishing service in the U.S. Armed Forces. "Duro v Derwinski, 2 Vet. App. 530 532 (1992); see also Soria v Brown, 118F.3d 747, 749  (Fed. Cir. 1997) (noting that "VA has long treated the serivcve department's decision on [a claimants verified service] as conclusive and binding," and finding "no error in that judgement").

I understand all the LOD/WM which is relative to Marks v Mcdonald memorandum decision, Thanks to Asknod for that useful gem of information!! Read that decision here! https://asknod.org/2014/09/18/cavc-marks-v-mcdonald-line-of-duty-and-willful-misconduct/

Bottom line, Are adjudictors under a different set of rules for following the law? I don't get it!!

 

Edited by anglersd (see edit history)
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Yes.  The VA gets to interpret its own regulation in any manner they please, and change it when they please.  

The reason is the Auer Defence, aka Chevron Deference.  In Chevron, the Supreme Court ruled that the Agency gets to interpret its own regulations.  

Unfortunately, this means the VA gets to interpret its regulation to suit themselves.  

You should see the VA math.  50 percent plus 20 percent equals 60 percent, according to VA.  

.08 BAC = .10 BAC

Presently pending a decision at the Supreme Court, this could change:

https://cck-law.com/news/supreme-court-to-hear-veterans-case-challenging-vas-power-to-interpret-its-own-rules/

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TO HAVE THE DD214 corrected is no easy task

you need to check with the 

ARMY REVIEW BOARDS

251 18th STREET,SOUTH SUITE385

ARLINGTON ,VIRGINIA , 22202-3531

took me 3 years to get mine straighten out and it still is not correct  I got tired of fighting with them.

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The VA breaks it's own laws more than we know.

Your VSO is wrong. They are supposed to follow M21-1MR.

Did you receive a DD 215? 

A DD 215 is a corrected DD 214 .

The form for that is here- and at the VA web site - Form DD 149.

You have 60 % now-was this an issue when they granted the 60% or just for the newer claim?

Can you scan and attach their denial as to their reasons and bases and the evidence list.

Cover C file prior to scanning it.

I am dealing with an example of how the VA ignores established VA Case law.

I have 3 CUE claims that are dependent on a General Counsel Opinion of 1997.

The opinion has never been altered, or recinded.

It was developed during the same time frame they dealt with my FTCA case. 

When my case was settled for wrongful death the opinion because precedent law, a few months later.But it had nothing to do with my settelement. It came after the Grdner moratorium I was in. I didnt even know about it until these opinions went on line years ago

My CUEs when properly granted will affect any other veteran or widow whereby the veteran had two 100% P & T ratings- one as SC and the other as separate "as if SC" disability  under 1151. 

 

Do not over look the General Counsel opinions.As well as the CAVC Precedent opinions.

 

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https://www.esd.whs.mil/Portals/54/Documents/DD/forms/dd/dd0149.pdf

Be sure you send it to the exact place it tells you to .

US CAVC:

http://www.uscourts.cavc.gov/index.php?fullsite=yes

Office of General Counsel VA 

https://www.va.gov/ogc/    just click on the Precedent Opinion thing on the right hand side

And it always pays to search the BVA site as well:

https://www.bva.va.gov/  click on the search thing for decisions.

You might not find any thing similar to your issue but one never knows.

BVA decisions are not precedent setting , but the BVA will cite VA case law that is precedent.

The pdf you posted here is a good piece of evidence to send along with the DD 149 application. If you refer them to any enclosures or additional statements make sure you put your name and address on all of them.

You do have a very legit gripe with them- but this did not seem to be a cause for the 60% awards??????

Some of these raters can barely even  read.

Maybe we can help more when we see their recent denial.

I am a widow of a veteran. If I had listened to my former VSOs, I would have never succeeded in my claims.

We are the best VSO we will ever have. But it all takes time and persistence.

 

 

 

 

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I just went to the BVA link above and under the search area I put "not under military control" and thousands of cases popped up:

https://www.index.va.gov/search/va/bva_search.jsp?QT=not+under+military+control+at+time&EW=&AT=&ET=&RPP=10&DB=2019&DB=2018&DB=2017&DB=2016&DB=2015&DB=2014&DB=2013&DB=2012&DB=2011&DB=2010&DB=2009&DB=2008&DB=2007&DB=2006&DB=2005&DB=2004&DB=2003&DB=2002&DB=2001&DB=2000&DB=1999&DB=1998&DB=1997&DB=1996&DB=1995&DB=1994&DB=1993&DB=1992

If you search under this same search phrase you can narrow the search down with other key words.

I am sure this is not the first time a vet went through what you have experienced with the VA.

In 1992 my husband had no problem getting a DD 215 with all of the decorations etc ,that were never on the original DD 214. This happened a lot to incountry Vietnam vets.He used the form above ( DD 149)

However I dont know if that procedure in the 1980s was the same for corrections of a DD 214.

 

 

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I think you need to keep it in perspective and look at the "big picture".  

A few years ago, I read this from the US Supreme Court, where Roberts (Chief Justice)

said, basically that over 50 percent of the time, the VA takes a position against the VEteran that is "substantially unjustified". 

Knowing this, it means you need to keep fighting VA until you win.  You see, the VA pays EAJA (attorney fees) to claimants attorneys when the Vet wins at CAVC.  And, the VA is paying for, of course, their own attorneys.  

So, why does the VA "fight us"?  The reason is they win, no matter what. 

1.  Often, by delaying it in appeals the Veteran dies and his widow has no clue how or if she should continue the claim.  

2.  The Veteran often gets sick and in too poor of health to keep fighting over the years of fighting. 

3.  EVEN WHEN the VEt wins, the VA gets to keep years and years of "free interest"..at the expense of the Veteran.  There is a "TIME VALUE OF MONEY" AND MONEY LATER IS WORTH LESS THAN MONEY Now.  (always).  So, the VA exchanges "money now" for "money later".  

       This means there is a financial incentive for VA to fight you on your benefits, no matter what, even when its a "bogus" arguement against you.  

       Im at the CAVC NOW.  My attorney "found an error" in the BVA decision.  Basically, they adjuticated TDIU "stand alone".  Well established case law says that TDIU  is not a "stand alone" claim, but part of a claim for INCREASE to include TDIU.

     My attorney thought the Va would consent to a "JMR" (Joint motion for remand) for the reason, above.  On the phone the VA said, "well, we probably will lose, but we still wont consent to a JMR".  

     So, I get delayed for a few more months or years, its highly likely that the judge will stay with precedence, and my attorney will be awarded attorney fees through EAJA.  

I expect the CAVC judge will remand my claim for readjutication as a claim for increase to include tdiu, but, of course, I will lose money in interest because the VA is keeping my money, interest free.  Of course, the VA is "loaning out" my money to other Veterans (in VA home loans) and they get to keep all the interest payments at my expense.  

 

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Broncovet:

Thanks for that link and information you gave. I'll give it a read and keep it in mind going forward. I guess I don't understand your " .08 BAC = .10 BAC" can you elaborate? Broncovet, I understand the EAJA. I've had to take my previous cases to the CAVC, they paid big bucks on one of my cases, 15,000 to be approx. what doesn't make sense that if they take the position they take all the time a veteran would lose constantly. I will fight them with persistance, no doubt about that! They violated some rights in my last case and they didn't want to consent to a JR, I told my atty. "fine, take it to the judges and show them". They agreed on the JR but didn't want to agree on all of the violations. One of them was the ALJ brought up the chapter 9 illegal discharge that was suppose to be deleted from my file. That's what prompted me to pursue this matter.

 

Buck52:

Actually, believe it or not, my discharge was automatically upgraded in 85 due to an administrative discharge that was ruled by the memorandum opinion of Judge Parker Barrington. Giles V Secretary of the Army, 1980. this is precisely my case. In my hearing transcripts it outlines what was of record, including the missing chain of custody records of this urinalysis testing they did. 2 tests were taken at 2 different times. Both those times did I ever smoke weed for them to come up dirty like it did. So, it does anger me to no end that they pulled this dirty trick on me. I call it now a conspiracy on the part of my section chief and the commander. Documents I found in my record with dates coincide to exactly what they were up to. what they didn't realize is I came from a unit I asked to be transferred out of because of an attack on my person, things that still affect me today. I try not to think about it. This ruling was in 1980 and it appears they continued this practice of administravelly discharging veterans in the same manner. I do know they did this to thousands of veterans.

https://openjurist.org/627/f2d/554/giles-v-secretary-of-army

 

https://www.courtlistener.com/opinion/1507825/walters-v-secretary-of-defense/

Bottom line is in both these citations, btw, interesting read!!

 

They did upgrade my discharge and it was an orginization who assisted with it and I believe it was NVLSP. One of the founding attorneys was fighting these cases back in the day. I've contacted them by email but got no response back. None the less, I thank whoever it was for there efforts in a successful outcome.

 

Berta:

With my congressional help, 2 of them. they wanted me to fill out the 149 to send in to have it corrected. I declined to do so. My reason? They already corrected this in 85 through the ABCMR, an exhaustion of all administrative procedures to get to them. I wasn't about to give them a second bite of the apple to potentially change it through this process. That could have happened, Have a read on the giles case where it outlines the army could go back and look at the full record and change it to misconduct type of discharge. not happening!!

So the dd215 is useless to me in a sense they've already gave me a corrected dd214 ordered by the ABCMR and the secretary of the Army.

when I get the chance I will redact personal information and upload my dd214 and the hearing transcript that took place and the approval from the SOTA documents. Including all the other stuff you're asking to see.

 

Per your other post:

Yes, totally understand what you're saying in all of this. Actually I've been a lurker on this site for quite some time and I know a lot about your situation. I've read quite a bit of your advice and I find you very admirable in your knowledge and take it to heart. There is no doubt this site is the best in VSO assistance. I've been at 60% many years with other conditions I have, this particular one is a brand new case brought up against the DVA, It isn't an increase from my conditions I have.

I don't think that was the proceedure back in the day for the dd215 according to my research on that. I think they issued a corrected 214.

 

I loaded up some stuff for you to have a look. Enjoy the read! Take notice of signatures, but also it says I applied for an upgrade. Wynima Smith is the signature of both the application and on my DD214. I didn't even know this existed which leads me to believe this organizations founder applied for me or the Army filed this on there own motion.

If you see anything that needs to be redacted, let me know and  I'll correct it. the last decision will be coming Berta, I don't have it on my computer yet.

BTW, those proceedings were NOT even placed in my file, I had to hunt them down.

thanks a bunch you guys for this information!!

 

 

 

 

 

 

 

 

 

 

 

 

 

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Let me stand corrected, it was sent over for upgrading in 85 and corrected in 86. when they say "any inconvenience this has caused". Believe when I say this has caused tremendous grief for me by leaving this in there. Read Giles and Walters and you'll understand the grief! dispicable is what I call it!!

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I mentioned the DD215 because of this:

In part:

A clerical error made on a DD Form 214 (or predecessor form) at the time of the creation of the document may be corrected by NPRC, if evidence is found in the record or, in limited cases, if satisfactory evidence is provided.  Retroactive service type awards may also be corrected based on information contained in the record.  A correction is usually made by issuing DD Form 215, not by issuing a new DD Form 214 (there are exceptions).

EXAMPLES OF ITEMS NPRC MAY CORRECT USING DD FORM 215:”


From NPRC

https://www.archives.gov/personnel-records-center/vso/record-corrections


Also this vet had a DD215 dated July 1989

https://www.va.gov/vetapp95/files2/9506166.txt

But the actual decision will tell you more.

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Berta, I found long ago this citation from CAVC, Spencer v West which deals with military control and the ABCMR. There was a OGC precedent opinion which has since been withdrawn, VAOGC 13-94. This case may have been the reason why it was withdrawn and no longer valid. I only assume so!!

http://search.uscourts.cavc.gov/isysquery/5b9b9a74-e6e2-4632-929b-b6fc56d58771/2/doc/

Also, thanks for that reminder, I opted into the new AMP program for a higher review (not sure it was a good move or not) and I can use this information if they schedule me for a phone conference. It deals with "active service" and "under military control" I don't know if this citation is precedent or not, but a lot of information in it is precedent opinion. Very close to my case!! But also if you look closely at my dd214 that it was in accordance with 10 U.S.C. 1552 with secretarial authority.

BTW, CAVC kind of gives the Secretary the smacketh down in this ruling. funny stuff!

 
 
 
 
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8 hours ago, Berta said:

In part:

A clerical error made on a DD Form 214 (or predecessor form) at the time of the creation of the document may be corrected by NPRC, if evidence is found in the record or, in limited cases, if satisfactory evidence is provided.  Retroactive service type awards may also be corrected based on information contained in the record.  A correction is usually made by issuing DD Form 215, not by issuing a new DD Form 214 (there are exceptions).

 

Berta, part of the reason why I was so persistent in not filling out the 149 was the simple fact it would have been fruitless. NPRC cannot change the character of discharge, only the DOD can do that by recommendations and orders from the ABCMR and the SOTA. The other thing I want to point out is VA is not wanting to remove these documents even though they were left in there. They say they can't because these records are on loan from the DOD. That's where the issue lies. My understanding now tells me the dept of the Army is contacting the NPRC to have the VA remove this old 214. Still waiting on that from constituent service of Rounds office.

Believe or not, it was the head rater at the VA I butted heads with years ago on this issue and he did nothing but nitpick everything, he even asked me If I had a letter from DOD telling me If had an upgrade, I said, "yea, it's called a dd214, look in box 24 where it says honorable" "chapter 10 U.S.C. 1552 with secretarial authority" But also the ABCMR transcripts. Both you and I know the DOD doesn't send out personal letters when being discharged. That's what the dd214 does. unfortunately he became a director at the VARO. This is probably why I got a bad decision in the first place is because of him. I mentioned complete bias in my rebuttal along with evidence of our email exchanges proving his ignorants. when they made an LOD/WM administrative decision it had to be signed off by upper management according to the M21 and I believe it was this head rater at the time who signed off on it. 🤬

Let me say this and I believe this whole heartedly, they made a decision based on chapter 10 U.S.C. 1553 where mine was 1552. 1553 has something to do with underhonorable conditions and 1552 is honorable where the DVA is bound by that. This tells me they are still using my old 214, lying to me and rounds office saying they are not using it. §3.12   Character of discharge. outlines quite a bit of this confusion, (e) is the only thing they should be looking at when they see my dd214.

(e) An honorable discharge or discharge under honorable conditions issued through a board for correction of records established under authority of 10 U.S.C. 1552 is final and conclusive on the Department of Veterans Affairs. The action of the board sets aside any prior bar to benefits imposed under paragraph (c) or (d) of this section.

Anyhow, I'll get this decision scanned and uploaded soon, thanks again!!

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If you have records that prove this ''rater'' made some wrong decisions  if you have proof  in your possession ?  then use that as evidence against him or try to convince DOD he was wrong and this is why your having problems getting your DD 214 Corrected.

I got my C-File And submitted my proof I was in Germany  with a Dr's note from when I went to sick call  it had my  name diagnose on it my prescriptions and name of my unit and date I was seen from the Military Dr.

They never used that as evidence I was in Germany   that's when I just gave up  but they did get other parts of my DD 214 Corrected  with dates and locations I served.

 I served in Germany for almost a year From Feb to Jan  and its not on my DD 214  Its not that Important for me claim wise  but the DD 214 Reflects the places served while in military.

However if It had  my discharge  OTH I certainly would fight them on this.

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Buck52, You might be slightly misunderstanding what I'm dealing with, let me clarrify for you!

The DOD already corrected this injustice in 86 but because my old DD214 was left in the file, by mistake, the VBA is using it against me. My OTH was removed and is now honorable per the ABCMR and Sec. of the Army.

This rater I'm speaking of was a manager, now he's the director at the VARO. Yes I do have all the emails between him and I and yes I did submit them into evidence showing evidence of bias. In my 25 page rebuttal for appeal outlines this, I will upload this as well.

So here's the thing, when the VBA made an administrative decision on LOD/WM they were influenced by  my old DD214 in doing so. the M21 outlines the procedures of when a LOD/WM has to be made. This is where I am going to have to upload some more docs to show you. But the cause of this accident was on her. It's a bit confusing and personally I'll have to get my ducks in a row on this matter if I have a conference with a more experienced DRO review in the AMP program. I'll be arguing it. they should not have made that determination. But also they left out relevant facts in that decision that were of record in order to make the LOD/WM determination. Come hell or high water, I will get this decision on here today. I go to the Vet center to put it in PDF format, then is when I will get this on here to show you.

https://www.knowva.ebenefits.va.gov/system/templates/selfservice/va_ssnew/help/customer/locale/en-US/portal/554400000001018/content/554400000014222/M21-1-Part-III-Subpart-v-Chapter-1-Section-D-Willful-Misconduct-and-Line-of-Duty-LOD?query=m21-1 part iii subpart v chapter 1 section d willful misconduct and line of duty lod#2

My point on this is, I was never charged with alcohol or convicted. So when looking at the m21 there are questions asked of when to make that LOD/WM determination. when they decided to make that determination, a higher up official has to sign off on it. I believe it was this rating manager who signed off on it. This document shows you who was at fault of this accident, granted it says nothing about my skull fracture, my admittance into the hospital shows otherwise. I don't know who filled this out and of course the original police report is missing along with some other documents of relevancy.

BTW, I did more than fall off my motorcycle, I flew over my handlebars, her vehicle and did a head plant on the curb, knocking me out cold. Fracturing my skull, busting my ankle, no helmet! I was traveling the posted speed limit of 30mph and had no time for any other reaction.

redacted 10-1023.JPG

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Humm

so you sent this in as evidence to show your OTH (Other than Honorably) was incorrect

and they still denied you for this reason?

You might want to check in with the OIG office, because some of these other agency have no control over making  this type of change

 let the OIG  office know all this seems   the rater is committing a flagrant  (false)statement against you and  your Due Process was violated also the duty to assist.

If you got your DD 214 STRAIGHTEN OUT AND THEY STILL USE YOUR OLD ONE AGAINST YOU  THIS IS WRONG.

i COULD BE WRONG HERE BUT  I SURE WOULD CONTACT THE OIG OFFICE.

They may not can help but they certainty can lead you to the right road to get this corrected.

I don't think they will take your old DD214 OUT  BUT USUALLY THEY ADD THE NEW CORRECTION CALLED THE DD215 as a correction and is attached to the original DD 214. and suppose to go by the  DD-215

As ms berta stated  the NRPC should be able to make this correction  but they keep your old DD214  But attach it to the DD 215

Your original  DD 214 will always be in your records. right or wrong  but the DD 215 shows it was corrected.

Edited by Buck52 (see edit history)
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Buck52,

No, the dd214 I uploaded is my corrected one and is correct. the old dd214 I won't upload because I don't want it out there. I uploaded a bit to show you. The ABCMR issued me the upgraded DD214, on the signature portion where it says wynima smith's signature it says ABCMR. I uploaded the ABCMR transcript of what happen in that hearing. if you haven't read it, please do so as it explains it. whoever was in charge of removing said OTH discharge dd214 didn't remove it and it remained in the file. Everything pertaining to drugs was to be removed. ABCMR has authority to remove the documents, ARB does not authority to remove documents. The dd215 isn't the form used when the ABCMR makes that correction.  It would be if the ARB was. the 215 only changes minor inconsistencies like address, name n such

This is where I think what happen is VBA is going off chapter 10 U.S.C. 1553 whereas the ARB corrected it and does NOT  have authority to remove it. The VBA should be going by chapter 10 U.S.C. 1552 whereas the ABCMR DOES have authority to remove it. They are the ones who corrected it. The NPRC can only change certain things on the 214 and doesn't include the character of discharge. Only the ABCMR has that authority. Subsection 3.12 in the CFR outlines a lot of this.

This is where I'm getting this information,

Prec. 10-96 is what you'll have to see to know what I'm talking about,

https://www.va.gov/ogc/opinions/1996precedentopinions.asp

A little bit of the prec. citation it states.

 The Committee concurs with the VA regarding the power and authority of the Board for Corrections of Military Records which, like a special act of Congress, can alter the individual’s service record in upgrading a discharge. . . . However, the Committee does not agree that the actions taken by the discharge review boards carry the same weight since the discharge review boards do not have the power and/or authority to alter service records.

In other words, this special little act of "congress"  called the ABCMR altered my dd214. Not the ARB. I believe the ARB was suppose to remove it, I could be wrong never the less it was left in there by mistake.

Buck52, trust me I was at that point of contacting the OIG. right now I have to wait on a response back from senator rounds who is helping me once again to get this corrected. Senator Thune helped me the first time. I uploaded those docs.
Let me show you on these two dd214. the voided one is the one that should have been removed. the other is the good one.

 

 

Edited by anglersd
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I've also got some other stuff uploaded of what Berta and everyone else was wanting to see,

Just a brief;

upon entrance into the ER it states "slight odor of alcohol" and some 3 + hours later it states "strong odor of alcohol" "slight odor of alcohol" was left out in the reasons and basis and LOD/WM determination.

the "BAC of 0.09%" isn't noted anywhere in my medical records, just he 93mg/dl and I question that.

they go into the spheel about transfers and upgrades and blah blah blah and how I wasn't acting in any type of support for the military. No matter how they twist n turn, bump n grind, push n pull the fact remains that on my upgraded discharge it states "ACTIVE DUTY" and only the service dept can make that determination. Not the VA!!

then they mention that I was "legally intoxicated" which really P**sed me off. No I was not, refer to HB1034 I uploaded and it'll tell you .10 is legally intoxicated in 83. I was never charged, tried or convicted of this crime they are accusing me of when they say "legally intoxicated". You'll love my response in my disagreement on this matter.

Hope this helps.

Let me be clear on some things, IF you see anything in here that needs to be redacted please let me know and I will correct it. I want these to remain here for as long as this site is up and running because who knows, another veteran could run across the same or simular situation and will know how to argue or act on this. FYI, I've been working my cases for the last 20+ years and only had the VSO,NSO submit my info. I did all the leg work so I kind of know what I'm talkin about when I do what I do.

thanks for understanding!!

 

 

 

Edited by anglersd (see edit history)
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