Jun 14, 2008

Death of 1960s Navy Airman Focus of Jailed Vet's Plight

Airman Gary Holland
The death of Airman Gary Holland on February 5, 1969 continues today to cause hardship and despair.
Holland was crushed to death by a C-54 aircraft at a Naval base in Naples, Italy.

Holland's death causes despair today because former VA General Counsel attorney and VA national Director of Compensation and Pension Services, Renee L. Szybala, helped engineer the prosecution of Gary Holland's (pictured above-right) fellow airman, Keith Roberts, by US Atty Stephen Biskupic.

The crime?

Roberts was for over a decade "tenaciously pursuing a claim for benefits" related to his actions at the death scene where he was on line duty at the same airbase as Holland.

And Roberts was convicted of five counts of wire fraud for receiving disability funds related to his diagnosed Post Traumatic Stress Disorder (PTSD).

U.S. Atty Stephen Biskupic's office convinced a jury that Holland and Roberts did not have a friendship, and Roberts who was on line duty at the base at the time of Holland's death exaggerated his efforts to save Holland.

A thin reed for a federal prosecution.

The truth is the VA just wanted to shut Roberts up and the VA found a useful tool in U.S. Atty Stephen Biskupic who was willing to the do the administration's dirty work that demeans veterans for seeking help with PTSD in this “culture of trauma,” that the Pentagon says is really just veterans' “personality disorders” and lack of faith in God for veterans suffering after service.

As Roberts’ attorney Robert Walsh states in his Court of Appeals for Veterans Claims (CAVC) Supplemental brief (where Roberts' disability claim still remains as he fights in the federal criminal appellate court simultaneously) filed in July 2007:

“Ms. Renee Szybala, who responded to the (Roberts') letter for the (VA) Secretary, then appears to have had a direct involvement in orchestrating the efforts to commence criminal proceedings against the appellant in Federal District Court when she knew his appeals were pending at either the BVA (Board of Veterans' Appeals) or this Court (the CAVC).”

Szybala, who since has moved on from her position as Director of Compensation and Pension Services, was responsible for managing the network of VA Regional Offices across the country.

Roberts' defense attorneys unearthed in discovery e-mails language suggestive of Szybala's complicity in the prosecution of Roberts. Delivering compensation was not high on Szybala's mind, the e-mails suggest.

In an e-mail of January 27, 2005 from Debi Bevins, Special Assistant to the former (VA) Secretary Jim Nicholson, Bevins asked Szybala: “Is there any truth to what Keith Roberts alleges in this e-mail?” referring to Roberts’ allegations of VA fraud and violations of his due process rights, and Roberts declarations of his rightful entitlement pertaining to his experiencing what the VA calls "stressors.”

In the same e-mail, Bevins asks: “Have we heard any news on the prosecution of Keith Roberts?”

Szybala replies in part in an e-mail dated January 27, 2005 that: “Of course not (there is no truth to Roberts’ allegations). But he (Roberts) may be confused and believe it. I have known of and been dealing with Mr. Roberts’ complaints for several years now, dating to my time at OGC (VA Office of the General Counsel) as explained in the message below. … In the interest of full disclosure, I also have a letter on this case from the American Legion, dated October 15, 2004 (asking for Vasil’s report), to which I have not yet responded. The fraud for which Mr. Roberts’ service connection was severed was uncovered, investigated, and reported by the OIG (Office of the Inspector General). To respond to the Legion’s letter, we need to confer with the OIG and have had trouble connecting. When we do we’ll ask them the question about the prosecution, too. My guess is, however, that this case would not interest a U.S. Attorney. …”

Several points made in this and subsequent e-mails obtained by the defense and not presented at the criminal trial (though successfully made part of the record of appeal at CAVC after efforts by atty Robert Walsh) are critical and raise questions about the legality and propriety of the prosecution instigated by the VA.

No testimony or evidence was presented at Roberts’ trial pertaining to Ms. Szybala’s statement that Szybala had been dealing with Roberts’ allegations and complaints for several years and that Szybala stated that “… he (Roberts) may be confused and believe it.”

This is significant because if Roberts believed the VA claim that he was pursuing and Szybala assumed Roberts’ believed his claim, this discredits the principal allegation of the government’s criminal case that Roberts devised a “scheme” to formulate misrepresentations with the intent of defrauding the VA, the alleged crime for which Roberts now sits behind bars.

Walsh, Roberts attorney at the Court of Appeals for the Seventh Circuit as well as CAVC, made this lack-of-intent argument in the appellate brief and at oral arguments in October 2007.

In fact, the US government in the person of Barbra Nehls of the Milwaukee VA Regional office, wrongly claimed at trial that Roberts’ benefits were reduced based upon the VA’s determination that Roberts’ statements of facts from 1969 formed the basis of the VA decision to grant or deny benefits.

This is a material misrepresentation of VA procedure: The determination of PTSD-related benefits relies upon medical evidence (such as being diagnosed by five different medical professionals that a vet has PTSD, as Roberts has been) and the existence of an in-service stressor (such as the reality that a man was crushed to death by a C-54 aircraft while an Airman was on duty), per 38 CFR (Code of Federal Regulations) 3.304(f). All a veteran has to achieve in first-person testimony is corroboration, not verification.

The CFR defines Post Traumatic Stress Disorder as Service connection for post-traumatic stress disorder; (PTSD) requires medical evidence diagnosing the condition in accordance with 38 CFR 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible evidence that the claimed in-service stressor occurred (38 CFR 3.304(f)).

Officials from the Milwaukee Regional Office and Special Agent Raymond Vasil’s Inspector General’s (OIG) office were included in the series of e-mails including one e-mail from the OIG's Vasil dated January 27, 2005, stating: “The U.S. Attorney is interested in prosecuting. He is not 100% yet and wanted me to interview any additional persons I could find that were present when the original accident happened in 1969 … ."

The engineering of the prosecution is evident from the e-mails.

And the rushed, extraordinary prosecution itself that was challenged in Roberts’ supplemental brief filed at the U.S. Court of Appeals for Veterans Claims (CAVC) in July.

“As detailed in the brief, the conduct of the (VA) Secretary has been contrary to law, in bad faith, highly adversarial. There is an inference of impropriety by any number of senior officials in the U.S. Department of Veterans Affairs,” reads the brief filed by attorney Robert Walsh.

And it bears repeating from the brief: “Ms. Renee Szybala, who responded to the letter for the Secretary, then appears to have had a direct involvement in orchestrating the efforts to commence criminal proceedings against the appellant in Federal District Court when she knew his appeals were pending at either the BVA (Board of Veterans' Appeals) or this Court (the CAVC).”

The two VA e-mails cited above are linked below.

- E-mail One

- E-mail Two

Roberts’ CAVC brief continues:

In this case the pursuit of the criminal conviction of this Appellant was ongoing during the entire pendency of this appeal. The (VA) Secretary appears to have willfully and knowingly circumvented the jurisdiction of this Court (CAVC) and his employees and agents made material misrepresentations of the precedent rulings of this Court and the U.S. Court of Appeals of the Federal Circuit in open court, under oath.

Roberts' cases, one of many scandals of the VA under the Bush administration, remains under appeal both at CAVC and the Court of Appeals for the Seventh Circuit while the 39-years-old death of the young Gary Holland continues to haunt his fellow airmen.

[Much of the above piece has been previously published at this site and other sites.]

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