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| Keith Roberts, veteran betrayed by the country he served. Fight continues at Veterans Court. |
This Veterans Day, I singled out one Wisconsin veteran, Airman Keith Roberts, who served honorably
in the Vietnam War combat era in a support capacity at a Navy Air Base in Naples, Italy.
Roberts is from the small city of Gillett in northern Wisconsin. He was honorably discharged from the Navy in 1970.
But his service, his rights, and his humanity were encroached upon by the United States government in the most cruel fashion.
For listening to his veteran service officer in Shawano County Wisconsin, who advised Roberts to seek PTSD disability benefits to the time of his discharge, Roberts and his family have been hounded, harassed, investigated and ultimately railroaded with a bogus federal criminal indictment for which Roberts spent years in federal prison. Folks at the VA and the DoJ did not want Vietnam-era veterans seeking disability benefit en masse, so they went after Roberts who claimed he was traumatized when his friend was crushed to death by a C-54 aircraft at the base.
Went after as in contrived a criminal indictment for Roberts' pursuing his disability claim.
The U.S. Dept of Justice in the office of the U.S. Attorney for the Eastern District of Wisconsin, Stephen Biskupic, (2001-2009), indicted this Wisconsin Vietnam-era Navy veteran, (who was diagnosed with PTSD by at least five different mental health professionals), using the power of the federal prosecutor to convict and jail him on trumped-up charges of wire fraud in 2004-2005.
I spoke with Roberts by phone numerous times this year.
Roberts will never be the same man. His family will never be the same.
At Mal Contends, I have attempted to bring this shame to light the last 10 years.
Honestly, I feel I may have been shouting at the cold in a Wisconsin winter.
There is no force of unreason as unyielding the United States government protecting a bullshit prosecution.
Except for veterans.
Veterans for Due Process, Inc. and attorney Robert P. Walsh, a Vietnam combat veteran, will not stop fighting for Keith Roberts, not until they're all dead.
Veterans for Due Process, Inc. filed a Friend of the Court brief, amicus curiae, last month at the United States Court of Appeals for Veterans Claims, (CVAC), in Keith A. Roberts v. David J. Hulkin, M.D., (No. 16-1219).
There are whistle blowers in the adjudication of veterans' claims. And then there's Walsh.
Roberts, Walsh and Veterans for Due Process, Inc want Due Process for Roberts' claim in light of the bullshit prosecution that denied Roberts fundamental Constitutional rights, specifically Due Process. That's it, that's all they want: Due Process.
Writes attorney, Christian J. Grostic, in part, (pp 5-8) in a supporting brief for Roberts:
2. The Benefits-Determination Procedures ... Do Not Provide Adequate Due Process.
The VA’s usual benefits-determination procedures do not include the necessary protections mandated by the regulations, the statute, and the Constitution to investigate or adjudicate allegedly false benefits claims. In fact, using the usual procedures in such circumstances further violates veterans’ rights.
By Congress’s direction, the usual benefits-determination procedures are “strongly and uniquely proclaimant.” Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998). “Congress has designed and fully intends to maintain a beneficial non-adversarial system of veterans benefits.” Id. (quoting H.R. Rep. No. 100-963, at 13 (1988)). “I[m]plicit in such a beneficial system has been an evolution of a completely exparte system of adjudication in which Congress expects [the DVA] to fully and sympathetically develop the veteran’s claim to its optimum before deciding it on the merits. Even then, [the DVA] is expected to resolve all issues by giving the claimant the benefit of any reasonable doubt.” Id. at 1362-63 (quoting H.R. Rep. No. 100-963, at 13 (1988)) (alterations in Hodge).
Congress’s expectations are codified in the applicable regulations. The VA’s adjudication regulations state that “[p]roceedings before VA are ex parte in nature.” 38 C.F.R. § 3.103(a). They notify veterans that “it is the obligation of VA to assist a claimant in developing the facts pertinent to the claim.” Id. They instruct that when “a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor the claimant.” 38 C.F.R. § 3.102.
Because they are designed to be ex parte and claimant-friendly, the usual benefits determination procedures do not include the due-process protections necessary in an adversarial proceeding, such as the investigation and adjudication of fraud allegations. As Congress stated, “[i]n such a beneficial structure there is no room for such adversarial concepts as cross examination, best evidence rule, hearsay evidence exclusion or strict adherence to burden of proof.” Hodge, 155 F.3d at 1362 (quoting H.R. Rep. No. 100-963, at 13 (1988)). The regulations follow this principle. Although a veteran is entitled to a hearing on an issue that arises under part 3, the purpose is solely to permit him to introduce additional evidence. See 38 C.F.R. § 3.103(c)(2). There is no mechanism for the veteran to obtain discovery or confront witnesses regarding the allegations against him, because such allegations are not governed by this scheme at all. There are no rules keeping separate the roles of investigating officials, prosecutors, and adjudicating officials, because those roles are not part of the claimant-friendly process.
Where the VA is truly on the veteran’s side, these procedures provide the minimum due process necessary for non-adversarial claims adjudication. But where VA staff become ad hoc investigators and prosecutors, the regulations’ minimal formal procedures allow those employees to use their access to the veteran and wide discretion to pursue and reinforce any allegations they choose, base their determinations on whatever evidentiary rules or burdens they see fit, and record their conclusions in the veteran’s file without a fair opportunity to refute them. These are the dangers of informal, ex parte proceedings, and why the procedures in part 42 are mandatory for any fraud allegations.
Moreover, the VA violates additional rights of veterans when its staff abuse the proclaimant regulations in part 3 to pursue anti-claimant allegations. Part 3 promises veterans that the VA will assist them in developing their claims, and veterans rely on that promise when they give statements, provide evidence, and otherwise cooperate with VA staff. See 38 C.F.R. § 3.103(a). When those government employees secretly violate that promise, particularly when they pursue quasi-criminal fraud allegations, they can coerce veterans into providing evidence against themselves or making involuntary statements in violation of the Fifth Amendment. See, e.g., Hopkins v. Cockrell, 325 F.3d 579, 585 (5th Cir. 2003) (promise that conversation was confidential rendered confession involuntary); United States v. Walton, 10 F.3d 1024, 1030 (3d Cir. 1993) (government agents unconstitutionally coerced statement by promising confidentiality to suspect, who did not know he was under criminal investigation); cf. Lynumn v. Illinois, 372 U.S. 528, 534 (1963) (police unconstitutionally coerced statement by threatening that government would cut off suspect’s benefits if she did not “cooperate”). This is yet another reason why the VA must follow the procedures in part 42 if it pursues fraud allegations administratively. ...
Legally, what the DoJ and the VA did to Keith Roberts is a case that is a no-brainer; it's wholly improper and unconstitutional.
Politically, most folks don' give a shit. But stay tuned. This is the first time I felt optimistic about Keith Roberts in a long time.
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