Jailed Wisconsin Veteran Case Gets More Bizarre

What does the U.S. government do with a veteran who blows the whistle on the U.S. Dept. of Veterans Affairs (DVA) shreddergate scandal and who badgers the DVA as he “tenaciously pursues his claim for disability benefits," telling DVA staff that they are a bunch of "bureaucratic assholes?" The Bush-Cheney DVA and the U.S. Dept. of Justice targeted, convicted, and impoverished this Wisconsin Navy veteran on trumped-up charges of wire fraud.

Specifics, say the U.S. government, are that Navy Airman Keith Roberts and Gary Holland (who was crushed to death by a C-54 aircraft at an airbase in Naples, Italy, back in 1969) were not friends [despite their parallel service histories] and Roberts exaggerated his efforts to rescue his fellow airman, [despite the fact that he was on line duty, and subsequently at least one veteran present has corroborated Roberts' actions]. Yeah, that's right, those are the specifics of the prosecution's criminal case hatched back in 2005-2006 to shut up and retaliate against a veteran who had become, according to a Milwaukee DVA regional hospital source, a "belligerent ass." [A background source at the Clement J. Zablocki VA Medical Center in Milwaukee e-mailed the Lee Rayburn radio show in Madison in early June 2007 after a program about the Roberts case and asked to remain anonymous out of fear of losing his job. "I'd have to say that you guys are TOTALLY (uppercase in the original) right about Roberts' conviction being bullshit. ..." Disability claim denied and off to jail.

In the latest developments, Roberts, a political prisoner of the Republican Party, now reportedly embittered and feeling hopeless, is expected to be released from federal prison in March after serving almost four years behind bars.

He still has a rare case [Keith A. Roberts v. Eric K. Shinseki (05-2425)] pending before an en banc panel of the U.S. Court of Appeals for Veterans Claims (CAVC) that issued what appears to be a bizarre order on December 29, 2009.

Roberts and the DVA

Roberts was advised in 2002 by the late Jim Henning, a Shawano County (Wisconsin) Veteran's Service Officer, to apply for an earlier retroactive date for his PTSD disability benefits predicated in part by his witnessing Holland being crushed to death and related trauma.

Bad move.

Critics and veteran groups rightly accused the Bush administration of the unprecedented politicalization of the Department of Justice and the DVA, and see the indictment and conviction of Roberts (and other veterans) on charges of wire fraud as a consequence of this politicalization that discourages Vietnam-era veterans from seeking PTSD benefits, per the views of the American Enterprise Institute's Dr. Sally Satel.

Roberts was diagnosed with PTSD and granted disability benefits in 1999, but became suspicious that the DVA was altering his Claim file (C-file), and he loudly accused the VA of engaging in fraud in phone conversations. Ultimately, the VA and then US Attorney Stephen Biskupic turned Roberts' charge around, and charged and convicted Roberts with fraud, an injustice that still has veterans all over the country shaking their heads in disbelief.

U.S. Court of Appeals for Veterans Claims (CAVC)

Now, almost five years after Roberts' case has been before CAVC, the Court is ordering litigants to product "memoranda of law addressing the meaning and applicability of 38 U.S.C. § 6103(d)(1) [a federal regulation]." The problem is that this case has absolutely nothing to do with this federal regulation that relates to a veteran's residency of a particular state, nor has any party in this case ever raised the issue. Whiskey-Tango-Foxtrot.

Writes Judge Lawrence B. Hagel who dissented from the Court in an extraordinary written opinion on a Court order for litigants to produce memoranda of law (reproduced in full below):

Hagel, Judge, dissenting: It is not my practice to object to a request by fellow jurists to seek additional briefing in a case to enable them to make a more informed decision. The procedural history of this case, however, compels me to depart from this view, in which I strongly believe. Consequently, I register my strong objection to the issuance of this briefing order for the following reasons:

1. Mr. Roberts's appeal was filed on August 26, 2005. This matter has now been before the Court for more than four years and four months. Briefing on this matter can serve no purpose but to further deprive, for no good reason, the parties of a decision in this matter. This is especially so in the light of the fact that neither party has raised the issues listed on the briefing order nor did the Court inquire about them in or in light of the numerous presentations to the Court, which include numerous supplemental briefings and two oral arguments.

2. The briefing order would have the parties discuss the applicability of 38 U.S.C. § 6103. Section 6103, on its face, does not apply to the facts of this case, as Mr. Roberts was "a resident of, or domiciled in, a State at the time the [fraudulent] act or acts occurred." 38 U.S.C. § 6103(d)(1). Accordingly, he is simply not subject to the forfeiture provisions of section 6103(a) and any briefing on the matter will surely be superfluous to the issues actually before the Court.

3. Neither party contends, nor has ever contended, that section 6103 has any relevance to Mr.Roberts' appeal, and the issue has not been raised at any stage of these proceedings. The Court's issuance of this briefing order invites the Secretary to once again change his position regarding the laws and regulations applicable to Mr. Roberts' appeal.

4. Given that Mr. Roberts was not criminally convicted of fraud until more than a year after the Board decision in this case affirmed that VA's severance of service connection was proper, I fail to see the relevance of the third question to be briefed regarding VA's ability to initiate severance proceedings once a veteran has been convicted of fraud in a Federal criminal proceeding.

5. In light of the delay already endured by the parties and the fact that both have a right to appeal our decision, whatever it may be, it is time to stop wringing our hands and issue a decision in this case. My view of the insistence to issue this briefing order was expressed more succinctly by the noted social commentator Will Rogers when he observed, 'Even if you are on the right track, you will get run over if you just sit there.'

For these reasons, I respectfully dissent from the Court's issuance of this order.

On a personal note, I have reported on this case for years and I would hate to wager anything on a just ruling from any judicial body despite the Court of Appeals for the Seventh Circuit's July 12, 2008 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," written without consideration of any exculpatory evidence that has come forward since 2005.