Freedom of Information Act Appeal, FOIA request to the VA, number: 18-10483-F

John W. Tilford
5561 Earl Young Road
Bloomington, Indiana  47408-9360

14 October 2019

General Counsel (024)
Department of Veterans Affairs
810 Vermont Avenue, N.W.s
Washington, D.C.  20420

SUBJECT: Freedom of Information Act Appeal, FOIA request number: 18-10483-F

Sir or Madam:

The subject request [Enclosure 1], filed on 21 July 2018, could be satisfied with an approximate number of veterans’ claims denied on the basis of 38 CFR § 3.12(d)(1).

Ms. Janice Stewart, Compensation Service FOIA Officer of the Veterans Benefits Administration; 1800 G St., NW; Washington, DC 20006 provided the response [Enclosure 2] dated 19 September 2019. The response paragraph reads:

Response:  As of August 25, 2019, there have been 18,176 Veterans who were issued a character of discharge decision that was dishonorable for VA purposes.  Unfortunately, VA does not track the level of offenses that led to a dishonorable decision.  The level of detail you are requesting is not available in VA data systems.

This concludes our response to your FOIA request.  We apologize for the delayed response.

United States Court of Appeals for Veterans Claims (USCAVC) decision Bruce vs McDonald, docket no. 15-3237, date 5 January 2017 and the implementing Board of Veterans Appeals decision[1] Citation Nr.1722233, Docket No. 07-14 92415, date 15 June 2017 established denial on the basis of 38 CFR § 3.12(d)(1) requires evidence of an impending general court martial. Three veterans whom I have assisted to date as an accredited claims agent[2] were denied benefits under 38 CFR § 3.12(d)(1) without any evidence of  an impending general court martial. Two lived within ten miles of one another in Bloomington, Indiana one more lived thirty-two miles away in Williams. One (Mr. Bruce of Bruce vs McDonald[3]) has received his retroactive compensation, one (Mr. Eads) case is still being adjudicated, and one case (Mr. Shaffer) remains docketed with the Board of Veterans Appeals. If we conservatively extrapolate a total number based on the three known to one veterans advocate isolated in southern Indiana there might be hundreds of veterans erroneously denied benefits under 38 CFR § 3.12(d)(1).

My intent is to encourage the Veterans Benefits Administration to reconsider all the claims previously denied under 38 CFR § 3.12(d)(1) without evidence of an impending general court martial. In order to more effectively strive for just and equitable treatment, I need both the precedent USCAVC case now on record and the approximate number of veterans who may have been harmed by the VBA misapplication of 38 CFR § 3.12(d)(1) confirmed by the USCAVC as erroneous.  The VBA FOIA response “As of August 25, 2019, there have been 18,176 Veterans who were issued a character of discharge decision that was dishonorable for VA purposes” is too general to be useful.

I have three bases to believe an approximate number of CFR § 3.12(d)(1) denials might feasibly be found:

First, FOIA Request: 18-07332-F submitted via email on 4 May 2018 by Mr. Brad Miller which requested, in specific part:

How many veterans’ claims have been denied on the basis of ‘Character of service is a bar to veterans benefits’ . . under 38 Code of Federal Regulations § 3.12(d)(l) which states ‘Acceptance of an undesirable discharge to escape trial by general court-martial.’”

The response to Mr. Miller dated 13 June 2018 from Paulette D. Maten, Compensation Service FOIA Officer, Veterans Benefits Administration to Mr. Miller’s FOIA request did not say the information was unavailable, rather it stated:

 As an “all other” requester, you are entitled to two hours of search time at no cost. Search time in excess of the first two hours is charged at the hourly salary rate of the person conducting the search plus 16% (38 C.F.R. 1.561(d)(1)). Additionally, VA’s FOIA regulation authorizes the agency to charge for time spent searching even if the agency does not locate any responsive record(s) or if any record(s) located are withheld as entirely exempt from disclosure (38 C.F.R. 1.561(b)(9)).

Fee Estimate: Grade/Step Hourly Rate Benefits Percent Salary + Benefit Rate (SBR) Approximate No. of hours (ANH) Subtotal
GS 13/10 60.60673 32.99% $ 80.60 8.0 $645
GS 14/2 56.92788 32.99% $ 75.71 2.0 $151
Totals                                                                        10.0                  $796

Ms. Maten’s response not only implied the data was available regarding denials based on 38 CFR § 3.12(d)(1) , the response included an estimate of the staff time cost and required Mr. Miller’s payment of  $796 within ten days to pursue the information[4].

Second, The VBA has performed similar searches among previous compensation claim denials in the past, e.g., in order to comply with the Nehmer decision in spite of the hundreds of thousands of initial claims backlog at the time. The following text is excerpted from the Government Accountability Office report GAO-13-89 issued in December 2012, “Timely Processing Remains a Daunting Challenge”:

VBA was required to adjudicate these claims as a result of requirements related to the Nehmer litigation. Nehmer v. U.S. Department of Veterans Affairs, Civ. Action No. 86-6160 (N.D. Cal.). In the preamble to a proposed rule amending its claim adjudication regulations (75 Fed. Reg. 14,391 (March 25, 2010)), VA summarized the Nehmer litigation generally as follows: this litigation was initiated in 1986 to challenge a VA regulation, which has since been rescinded, that limited the diseases shown to be associated with herbicide exposure. In an order issued May 3, 1989, the court invalidated the portion of the regulation that limits diseases associated with herbicide exposure and voided all VA decisions denying benefit claims under that portion of the regulation. Nehmer v. United States Veterans’ Administration, 712 F. Supp. 1404 (N. D. Cal. 1989). Pursuant to a stipulation agreed to by the parties, VA must provide for readjudication of class members’ claims [emphasis added] and payment of retroactive benefits whenever VA identifies a new disease that is associated with herbicide exposure and adds a new disease to its regulatory list. In addition, pursuant to the Agent Orange Act of 1991, VA is required to issue new regulations establishing additional presumptions of service connection for diseases that the Secretary finds to be associated with exposure to an herbicide agent. 38 U.S.C. § 1116(b). Accordingly, VA amended its adjudication regulations in August 2010 to establish presumptive service connection for ischemic heart disease, Parkinson’s disease, as well as hairy cell leukemia and other chronic B-cell leukemias. 75 Fed. Reg. 53,202 (August31, 2010).

The means was found as compelled by the decision.

Thirdly, as a former GS-343-12 management analyst I proposed a solution via email to Ms. Janis Stewart on 2 October 2019:

Take a random sample of 300 cases [or any similarly sized sample you choose] from the “ . . there have been 18,176 Veterans . .” From that sample, determine how many were based on 38 CFR § 3.12(d)(1). Please provide that number and the size of the sample used. I would certainly consider payment of the administrative expense.

Ms. Stewart’s final response dated 19 September 2019 addressed this suggested means to obtain an estimated number of 38 CFR § 3.12(d)(1) denials but stated a manual search would be too difficult. One would assume that a sharp intern could copy the entire texts of a few hundred randomly selected cases of the over eighteen thousand denials due to character of service, paste those representative samples into one admittedly huge Word document, and do a top-to-bottom search for “38 CFR § 3.12(d)(1)”.  As Word jumped forward to each “hit” the operator could copy and paste the case identifier for each case so discovered into a list. Providing me the number of the discovered cases and the number of cases sampled would satisfy my FOIA.

How ironic any recruit who paid attention to his or her first class on the Uniform Code of Military Justice would have seen the unlikelihood of any junior enlisted soldier being tried by a general court-martial and equally unlikely would have been the prerequisite Article 32 investigation or waiver of same. Yet the Board of Veterans Appeals continued to support the creative position before the United States Court of Appeals for Veterans Claims any disciplinary action was equivalent to a general court-martial, raising the possibility of an ulterior motive – perhaps the same erroneous interpretation having been used for many other denials and avoidance of mandateded multiple readjudications.  

Thank you for the opportunity to continue to seek an approximate number of those veterans who were denied by the VBA on what we now know to be an erroneous interpretation of 38 CFR § 3.12(d)(1).

John W. Tilford

Colonel, Military Intelligence, US Army Reserve: GWOT 2001-2004
Corporal, US Marine Corps: Vietnam 1967-1969

Encls as stated

[1] My name appears as Mr. Bruce’s representative.
[2] Tilford, John W; accreditation number 28567, POA code 9S9
[4] Mr. Brad Miller assisted me in my 2012 campaign for the US House of Representatives, Indiana 9th District. I did not expect him to pay $796 and he did not, but I did anticipate a very similar response to my subject FOIA request for the same data and had donations in hand to cover a demand for payment.

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