CAVC–Nelson v. Shinseki 2011- AWOL= No Dough (SJD)


his is another in a series of Hepatitis-related Single Judge Rulings (SJR). Veterans ask us frequently what kind of treatment they can expect to receive at the Court. This will give you an idea how respectable and forthright the Judges are. This one is before Judge Alan G. Lance who treats the Veteran with the utmost respect. 

     Mr. Gary L. Nelson approaches the Court, hat in hand asking for a reversal of what could politely be described as a train wreck of a claim. He has more problems with this than even he knows. I wonder if he told his legal help all the details before or on the way to his Court date. In any case, he is going to be given another bite of the apple. This won’t result in a win. Nothing he can do will ever allow him to prevail absent the Army giving him a new DD214 and a Form 256 with the word “honorable” on it. 

     Gary, it seems, went off the reservation as soon as he got in-country in Vietnam. He got caught in the wrong part of town where the poontang roam (7/70), reckless driving and disrespecting an officer (11/70), Absent from his guard post (1/71) and last but not least shooting at an unarmed Vietnamese civilian. The first three netted him an Article 15 each. The last one cost him some R &R at the Long Binh Stockade for 57 days (4/71). 

      Feeling the need for more unscheduled R & R, Mr. Nelson stepped out again in late June of 1971. They found him and returned him to Long Binh 201 days later in January of 1972. The next day he was transferred to the hospital with a bad case of poppyitis (heroin addiction). Amazingly, the Army still tried to salvage him instead of giving him the boot. He rewarded them with 4 more AWOLs in quick succession. The last one was for all the marbles. They preferred charges against him and he agreed he was doomed. He asked for, and was granted, an administrative discharge for the good of the Army (not to mention for the good of Gary). Unfortunately this “divorce” came in the form of an Undesirable Discharge printed on Form DD 258. Since we all know that the Tooth Fairy only visits those Vets who possess either a Form 256 or 257, the following should not have come as a big surprise. 

     In 1977 Mr. Nelson petitioned for an upgrade to his undesirable. He was granted a General under Honorable conditions in 1978. Thinking he had bearded the lion, he applied for VA bennies. His balloon was popped in May of 1979 when the VA pointed out that his AWOL status in excess of 180 days (201), in conjunction with the other 4 AWOLs and his unarguably poor behaviour towards his superior officers, precluded his ever getting a dime out of the VA. He didn’t appeal and that was the end… for a while. 

     Twenty six years later in 2006, Garbo returned and asked for his share of the Nehmer class bucks for his DM2.  He had also picked up Hep C from that steady diet of smack. The chickens had finally come home to roost and he wanted a seat at the VA compensation table.

     VA once again patiently explained to him how this was not going to be in his cards. He lawyered up and headed for the BVA. They did a sloppy job and turned him down too. But when you turn someone down at the BVA, you have to do it politely and legally. The Board only satisfied the first tenet. Legally, he currently is not entitled, but it is necessary to do it and say it in legalese. This they didn’t do and this is what the Court is taking them to task on.

     Gary doesn’t stand a chance of getting away with this and by now he should realize it. His best bet is to sharpen his pencil and go down to the Social Security office.  President Carter issued a Presidential Proclamation in 1977 to allow Vets to upgrade their discharges if they were less than General. It had one little clause in it that precludes any VA benefits if you had deserted or were AWOL from a combat zone. We discussed the Undesirable, but there is a special place in military hell for Vets with the BCD. Nicknamed The Big Chicken Dinner, the Bad Conduct Discharge (DD Form 259) is only given out when you go AWOL, come back from Canada 12 years later-and accidentally get caught speeding. The Army has a long memory. You can get the Dinner for killing too efficiently (think unarmed civilians in a FFZ), for killing a fellow soldier, bank robbery or for any number of underhanded things. It usually is accompanied by an all expenses paid vacation at Fort Leavenworth in Kansas for several years before they give you your Certificate of Achievement. Nevertheless, Gary was and is in “Undesirable” hell because Congress passed a law in 1995 denying VA benefits even with a upgrade to honorable. Were he to go before a Army Discharge Review Board, seek and be granted a similar concession from them, then he would be eligible for full VA benefits. We here at AskNod see his chances as about equal to the proverbial snowball’s. But, as they say, Nothing ventured, nothing gained. 

     We say go for it, Gary. I looked up the rules on this and VA does have some compassion. He can get free medical as they will turn no Vet away.  Above and beyond that? Nothing. No VA Home Loan either. This is rather sad and was so utterly avoidable. 

So if you think you have problems, meet Mr. Gary L. Nelson.

http://search.uscourts.cavc.gov/isysquery/44a4c223-8ba0-4761-88dd-6aec838cb13e/24/doc/NelsonGL_09-3266.pdf#xml=http://cavc-isys1.cavc.adir/isysquery/44a4c223-8ba0-4761-88dd-6aec838cb13e/24/hilite/

About asknod

VA claims blogger
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