Correct CVA decision on Incorrect BVA decision

[Daniel F]

I know Hadit cannot address OTH Discharges But my case is different because the BVA decision states I based my claim on the wrong Army Regulation May 1956 instead of April 14, 1959. The Court found for the Boards decision, as this regulation was not before the Board at the time of the decision. I went over all AR'S but could not find this one, I finally found it in the Congressional Record of the 88th Congress 1962.  A Department of Defense directive dated 1-14-1959 Which became effective 90 days later on (April 14, 1959)Which cancelled and Superseded all other service regulations on administrative discharges. Stating the definition of what was misconduct and what was Unfitness. I was discharged by the Army under an Army Regulation that had been cancelled 2 years and 11 months before my discharge. I was discharged for a Personality Disorder for Unfitness. The VA found my discharge was for Willful and Persistent misconduct, DOD directive states I should be discharged for unsuitability for further retention in the service due to the diagnosis of a personality disorder. That my Character of service would be based solely on my service records which document no other problems documented by the record.

The Courts decision was correct because I was discharged under provisions of DOD directive April 14, 1959,  (the CVA upheld the Board decision that I predicated my defense on the wrong army Regulation ) I was discharged on 3-23-1962, under an Army reg that was cancelled 3 years before my discharge under its provisions. The DOD directive is new and material evidence. The CVA decision in reality was favorable to my claim (Which the Court did not mean it to be)

What are my options The Board decision was in August 2014 and the CVA decision was in 2016, what are my options and which other VA forms must be filed? I found the DOD directive about 5 months ago!

Thank you

Dan

[Daniel F]

Berta, I was discharged UP AR 635-208, I have a copy if you need one. I am sending the CVA memorandum decision and a copy of DOD directive of 1-14-1959. I am sorry but it is 2;00 AM here and I just woke up. What ever you need let me know and I will send it. A quick overview, I was in the army 242 days with no misconduct documented on my record. I completed Radar school in NJ and was sent to Hawk missile school in Ft Bliss Texas. I was at this post 26 days before going AWOL for 3 day and 11 days later I went AWOL again for 4 days Both AWOL's were in an 18 period from 11-1 to 11-18-1962 the only misconduct in my record,

I received a Special court martial on 11-30-1962, only other evidence consider was the Summary CM for 3 days AWOL, was sentenced to the maximum punishment under UCMJ, instead of 6 months sentence my sentence was for 5 months. I went directly back to the Stockade where I was on pre-trial confinement since 11-18-1962 and remained incarcerated till my discharge on 3-23-1962.

Six days after my court martial I underwent a psychiatric evaluation before going before a AR 635-208 Board to consider the psychiatrist diagnosis and recommendation for discharge under provisions of AR 635-208 and was discharged.

In August 1 t0 August the 8th I was in Tripler Army Hospital for attempted suicide, Diagnosis Was Passive Aggressive reactions mild, Stress mild (Domestic difficulties) and Poor home milieu MORE Importantly is What was not found, A Conduct Disorder before the age of 15 years, no an Anti Social personality which existed prior to service..AS required by DSM IV 41h edition.

When I entered the service under the full presumption of Soundness, In 60 years of psychiatric evaluation and treatment. No mental health professional has found, diagnosed or treated an anti social personality disorder. I do not have today nor did I have an anti-social personality disorder on December 6, 1961.

There are 9 years of Tucson VCA hospital mental health unit which records had never been in my record before the agency.

IMG_20200314_0004_NEW.pdf IMG_20180814_0001.pdf Document.pdf

[Daniel F]

Berta, I was discharged UP AR 635-208, I have a copy if you need one. I am sending the CVA memorandum decision and a copy of DOD directive of 1-14-1959. I am sorry but it is 2;00 AM here and I just woke up. What ever you need let me know and I will send it. A quick overview, I was in the army 242 days with no misconduct documented on my record. I completed Radar school in NJ and was sent to Hawk missile school in Ft Bliss Texas. I was at this post 26 days before going AWOL for 3 day and 11 days later I went AWOL again for 4 days Both AWOL's were in an 18 period from 11-1 to 11-18-1962 the only misconduct in my record,

I received a Special court martial on 11-30-1962, only other evidence consider was the Summary CM for 3 days AWOL, was sentenced to the maximum punishment under UCMJ, instead of 6 months sentence my sentence was for 5 months. I went directly back to the Stockade where I was on pre-trial confinement since 11-18-1962 and remained incarcerated till my discharge on 3-23-1962.

Six days after my court martial I underwent a psychiatric evaluation before going before a AR 635-208 Board to consider the psychiatrist diagnosis and recommendation for discharge under provisions of AR 635-208 and was discharged.

In August 1 t0 August the 8th I was in Tripler Army Hospital for attempted suicide, Diagnosis Was Passive Aggressive reactions mild, Stress mild (Domestic difficulties) and Poor home milieu MORE Importantly is What was not found, A Conduct Disorder before the age of 15 years, no an Anti Social personality which existed prior to service..AS required by DSM IV 41h edition.

When I entered the service under the full presumption of Soundness, In 60 years of psychiatric evaluation and treatment. No mental health professional has found, diagnosed or treated an anti social personality disorder. I do not have today nor did I have an anti-social personality disorder on December 6, 1961.

There are 9 years of Tucson VCA hospital mental health unit which records had never been in my record before the agen

[Berta]

I think you are misunderstanding the regulations that a Dishonorable Discharge involves.

"For VA purposes, a veteran is a person discharged or released from active service under conditions other than dishonorable. 38 U.S.C. § 101 (2); 38 C.F.R. § 3.1 (d). The threshold question to be answered in every claim for VA benefits concerns the adequacy of the claimant’s service for purposes of establishing basic eligibility. Applicable laws and regulations provide that most VA benefits are not payable unless the period of service upon which the claim is based was terminated by discharge or release under conditions other than dishonorable. 38 U.S.C. §§ 101(2), 101(18), 5303; 38 C.F.R. § 3.12 (a)."

https://www.va.gov/vetapp20/files3/20016497.txt

The VA at the Regional Level made a Character if discharge determination, that was binding n the BVA.

The only way I now of to change this type of discharge is by starting the Discharge Review Board process.

Pacman gave you a link to the form.

The instruuctions state:

"7. ITEM 8. U.S. Code, Title 10, Section 1552b, provides that no correction may be made unless a request is made within three years after the discovery of the error or injustice, but that the Board may excuse failure to file within three years after discovery if it finds it to be in the interest of justice."

I understand that the DRB will waive that 3 year criteria in some cases, depending on the evidence they receive.

I checked this info with NVLSP in the VBM. They will help with upgrades to discharges if the veteran meets this critera:

This is from their web site:

"3. How does NVLSP’s Lawyers Serving Warriors® program assist veterans with discharge upgrades?

Our pro bono program will provide eligible veterans free representation before military Discharge Review Boards and Boards for Correction of Military Records.  Our expert assistance includes the drafting of a brief in support of an application to either a DRB or BCMR and/or appearing before the board to present the case at live hearing.

4. Who is eligible for assistance with a BCMR application through NVLSP’s Lawyers Serving Warriors® program?

All veterans who suffered from a mental disorder (such as PTSD or depression) in service that contributed to misconduct that resulted in an administrative separation with a discharge under Other Than Honorable Conditions (OTH). "

If you have been diagnosed with PTSD, depression, or any sort of anxiety disorder, they might be able to help you.

Also this google search might help you find a good military lawyer:

https://www.google.com/search?rlz=1C1CHBF_enUS695US695&ei=u1riX7vxDsfG5gK39Y2gBg&q=help+with+upgrade+to+dishonorable+discharge&oq=help+with+upgrade+to+dishonorable+discharge&gs_lcp=CgZwc3ktYWIQDDIICCEQFhAdEB46BAgAEEdQ5SFY9JEBYPO3AWgAcAN4AIABrhKIAfNBkgEFOC0yLjKYAQCgAQGqAQdnd3Mtd2l6sAEIyAEIwAEB&sclient=psy-ab&ved=0ahUKEwj7us6nuuLtAhVHo1kKHbd6A2QQ4dUDCA0

Many have free consultations, and 

a chat person popped up right away , when I clicked on https://mymilitarylawyers.com/experience/?gclid=CjwKCAiAz4b_BRBbEiwA5XlVVqY_go_ucnxOKkB--3R1xq0v_vBJpdL-K7gQx81U4QgerAPyRMt4KxoC7wkQAvD_BwE

You would need to supply the DRB with evidence, and affidavits, that would show you are not the same person that they discharged you to be.

You might find that the Tusson medical info would be favorable to a upgrade.They might have diagnosed you with a disability that wuuld fall under NVLSP's criteria.But that would need a nexus to your service.

"willful and persistent" conduct is very difficult to overcome, and it would require proof that the behavior was not persistent and not willful, because the VA says it was ,based on the evidence they had.

I have no further comments on this-the BVA cannot change this type of discharge- only the DRB can- and they deny many,if not most, of the cases they get.

The BVA decision link I posted above holds the laws and regulations that apply to your issue.

This link has some additional information:

https://militarybenefits.info/top-ten-questions-about-military-discharge-upgrades/

 

 

 

 

 

 

 

 

 

Edited December 22, 2020 by Berta
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