Aug 10, 2009

Veterans Court Orders VA Info in Jailed Vet Case

As Wisconsin Navy veteran Keith Roberts fights for his innocence in veterans’ court, the Court of Appeals for Veterans Claims (CAVC), a development in the case may signal a heightened scrutiny on allegations that the Dept of Veterans Affairs (DVA) bypassed laws and regulations to target Roberts in a coordinated hostile act.

Last week, the Court in Keith A. Roberts v. Eric K. Shinseki (05-2425) announced that it:

has determined that additional information from the [DVA] Secretary would be helpful to the Court's resolution of this appeal. The Secretary will describe the procedures, practices and polices used for severing service connection of protected ratings due to fraud in effect at the time of the August 2005 Board decision and the date those procedures, policies and practices were implemented. Additionally, the Secretary will provide the Court with any materials that support these procedures and any associated policies or practices, such as VA General Counsel Opinions, VA Manuals, Chairman of the Board Memoranda, VA Fast Letters, Directives, Circulars, or any training materials.

From July 29, 2009:

The Court is hearing the 13-years-long claim of Keith Roberts, an innocent Vietnam-era, Navy veteran wrongfully jailed through a George W. Bush DOJ prosecution after he was targeted by the U.S. Dept of Veterans Affairs (DVA) for “tenaciously pursuing a claim for benefits” and his whistle-blowing accusations that the VA was fraudulently altering his C-file.

The en banc (full) hearing before CAVC, the national veterans court, will consider issues raised by Roberts including the imperative of the DVA to follow administrative rules and protect veterans' due process, and the mandate of the DVA to avoid a general adversarial posture towards veterans.Roberts was convicted of wire fraud in 2007 after U.S. Atty Stephen Biskupic's office had convinced a jury that Roberts and a deceased Navy airman (Gary Holland)--who was crushed to death by a C-54 aircraft at an airbase in Naples, Italy--were not friends though the two men had parallel service histories.

Not being friends and exaggerating his efforts to rescue his fellow airman; this does not seem just cause for a prosecution.

Most any veteran would tell you when the airbase equivalent of a general quarters alarm sounds, any man or woman on line duty would not ignore the alarm as is the U.S. government's official position in this perhaps most ludicrous case in DVA history.

Reads Roberts CAVC brief:

Employees of the Department [DVA] have failed to follow the requirements of the laws and regulations mandated for fraud determinations relevant to veterans. The violations of due process in this case are too numerous to list. Because the conduct of the employees of the agency have been so extreme in this case, the remedy should be extraordinary. The Court should make clear that the requirements found in [U.S. Code and federal regulations] ... are mandatory, not advisory.

An affirmative decision by CAVC may affirm that the argument made by veterans in the class action law suit by veterans of the Iraq and Afghanistan wars that the DVA must perform its Congressionally mandated function to serve veterans.

Roberts has been diagnosed with Post Traumatic Stress Disorder (PTSD) by several private and public medical professionals, but again this documented medical condition is insufficient to establish his innocence of fraudulently receiving benefits.

Contra the government's case, writes Scott Horton in Harpers Magazine (Sept 7, 2007), "The prosecution smacks of retaliation and a plan to suppress veterans claims—Roberts was prosecuted for tenaciously pursuing a claim for benefits, which VA resisted and which is still in the benefits review process."

On appeal, Roberts' criminal conviction for wire fraud was upheld last year with the Court opinion reading in part: "The record might also have supported a jury determination that Mr. Roberts sincerely believed that his statements were true and that he had no intention to defraud the Government. It is beyond our authority to disturb such a finding on appeal."

Writes James W. Ervin, stationed in Naples with Roberts, who supports Roberts' version of the circumstances in Italy that Roberts has for decades asserted was a Navy cover-up that resulted in a friend's death:

I was stationed @ NAF Naoles, Italy at the time of this 'incident,' July 1968 thru Nov.1969 . I also remember the young sailor be trapped / crushed up inside the wheel well (nose) of the aircraft inside the hangar of NAF naples, Italy. I do remember someone wanting to drive a forklift into the side of the aircraft; but an officer or someone of authority would not let them do what they did was have men climb up into the plane & go to the rear of the plane to put weight in the rear of the plane to let the nose come up to release the trapped sailor. Unfortuately that process was too slow to save the sailor from death. I also remember taking photographs of the 'Pin' that was in the nose gear at the time. I remember it as being a homemade looking pin without a locking clip to keep it from being removed without unlocking the device. As for the names of the people involved , I don't remember ; but there definitely was someone there who wanted to use the foek lift to rescue the sailor from the collapsed nose wheel and was ordered NOT to use the fork lift.

But Ervin was not heard at trial so Roberts sits in prison.Roberts was an early whistle blower in the shreddergate veterans scandal, accusing the Milwaukee VA Regional Office of destroying documents in his file and engaging in fraud as the VA was in the process of determining the date from which his retroactive disability pay was to become effective.Roberts, of Gillett, Wisconsin, sought a new retroactive date per the advice of his Shawano County (Wisconsin) Veteran’s Service Officer.

Anger and frustration with the VA drove Keith Roberts to phone the VA Inspector General’s regional office at Hines, Illinois in November 2003 to complain.Roberts spoke with one VA Special Agent Raymond Vasil.

When he accused the VA of outright fraud in November 2003, Vasil retaliated against this Vietnam-era who had reportedly become a pain to the VA regional office.Several VA e-mails point to top officials in the VA engineering a criminal prosecution while gaming the veteran’s VA benefits adjudication, and subsequently putatively financially assaulting the veteran’s family. Roberts is but one victim of a stacked-against-the-veteran benefits system that was the subject of an that found as fact benefits-hostile practices at the VA.

Exercising an utter lack of prosecutorial discretion, the U.S. Atty after prodding from U.S. Dept of Veterans Affairs (VA) officials began the bizarre prosecution that drew immediate fire from veterans’ groups, such as Colonel Daniel K. Cedusky’s, AUS, (Ret.) and the American Legion.

Adding insult to injury, the VA also began immediate collection actions against the veteran and his two young daughters who had received education benefits related to their father’s service in the Navy, though Roberts' claim is still pending to this day at CAVC.

What prompted the U.S. Atty’s office was a puzzle to many readers who have followed the case of Roberts who has been serving 48 months in a federal prison since 2007, as well as incurring associated costs of some $500,000.

But Keith Roberts was indisputably a major political and legal target of the VA that retaliated against this veteran for seeking retroactive PTSD-related disability benefits and calling out the VA on altering his C-file, a practice that was found to occur in 41 of the 57 VA field offices which have now adopted new procedures to preserve records such as what Roberts complained about in November 2003.

Revealing the Alice-in-Wonderland nature of the case is the fact that if Roberts claim is affirmed by CAVC, Roberts will have been found guilty of receiving benefits which he was found to be entitled.

In August 2005, the DVA, taking its cue from the American Enterprise Institute (AEI) had announced plans to review 72,000 PTSD cases with a 100 percent disability ratings like Roberts’.But a torrent of criticism by veterans’ groups and Democrats forced the Bush administration to back down.

On August 10, 2005 then Sen. Barrack Obama (D-IL) blasted the administration in a letter to then VA Secretary Nicholson:

In order to truly create fairness in the claims system, the VA should concentrate its efforts on reviewing denials of PTSD claims. Without assessing why some PTSD claims are denied, it will be impossible to fully understand how the VA’s PTSD rating system can be improved.

The process of gathering evidence to prove PTSD disability is extremely time-consuming. It requires the compilation of medical records, military service records, and testimonies from other veterans who can attest to a person’s combat exposure. I cannot fathom why the VA would require veterans to go through this emotionally painful process a second time.

Roberts became a target. Now many veterans' advocates are optimistic that under President Obama a change will come in how the DVA treats its veterans in the face of a hostile and selfish entrenched bureaucracy. There is now a political will from the administration to respect veterans.

For now the DVA claims process can be so frustrating that many vets (especially those suffering from PTSD) are thrown into fits of rage directed at the DVA itself, with nothing less that a sordid history, including such scandals demeaning veterans for seeking help with Post Traumatic Stress Disorder (PTSD) in this “culture of trauma.” The Pentagon at one point even blamed veterans “personality disorders” and lack of faith in God for veterans suffering after service.Concludes the Roberts brief filed at CAVC:

The Court should craft a remedy for Mr. Roberts which orders the Secretary to restore to the Appellant his full panoply of V.A. benefits Nunc Pro Tunc [now for then, meaning retroactive restoration dating back to a point prior to the DVA's crusade against Roberts] to November 1, 2004, regardless of 38 C.F.R. § 3.665. His daughters should have their educational benefits restored and all collection activity against the Appellant and his family should cease. Roberts will still languish in prison, but will have some vindication and hope for an early release based on the order of this Court.
See also:
- VA Document Contradicts US Atty in Jailed Vet Case
- Weakening US Criminal Case, VA Turns Down Jailed Wisc Vet’s PTSD claim
- Jailed Wisconsin Veteran Sent to Solitary Confinement, Seeks Help
- DVA Attacks Veteran
- National DVA Director Pushed US Atty Biskupic to Indict Wisconsin ...

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