That VA letter going around
Yesterday, someone sent us a link to a post at Red Flag News about a letter that’s going out to some veterans in regards to the finding that they are not considered competent enough to handle their own financial affairs and that the VA reporting their names to the NICS system for background checks. I made a snap judgement yesterday by reading the overblown description of the letter by the blogger, who claims to be a lawyer, and guessed that the post was bullshit. Today he has posted the actual letter and here’s the relevant paragraph;
If a guy is to the point where he’s having problems with his finances, the VA (usually under a request from the family) will put a vet in for Guardianship. Again, this is *usually* but not always a request from the family. It wouldn’t be everyone with PTSD, not everyone even at 100%. But what it does is allows VA to pay the family, who in turn has to pay the guys/gals bills. Different things kick in then to ensure the money is appropriately spent. That also is fraught with trouble.
Now, at that time the vet can ask for a hearing, provide evidence, and do all the other happy Due Process stuff.
The change here is that this didn’t automatically send the names to NICS. And in my opinion is probably unconstitutional. The NICS statutes say that the person has to be a threat to himself or others. But the Guardianship thing in VA regs doesn’t say that, only that they are incompetent with regards to handling their money. For years we’ve kept the VA from reporting those names because of the differences. Seemingly they have changed that now. There is a bill to correct that.
For what it’s worth, Shinseki has said that the VA is not reporting those veterans to the NICS system, this seems to be a change in procedure. But the letter, despite the breathless reporting by this lawyer dude at the blog, explains to the veteran to whom the letter is addressed how to avoid being ruled incompetent.
By the way, I looked up the cite from 18 USC 942(a)(2) which merely refers to 18 USC 922(a)(6) which, in turn says you can’t lie when you buy a gun – so all of that legal crap doesn’t say anything we don’t know and it has nothing to do with being a mentally incapacitated veteran.
But, basically, what the letter doesn’t say is that the VA is disarming veterans arbitrarily. Don’t let this letter be the reason you don’t go to the VA to get the treatment you need and earned. I doubt very much that any of you are being supervised by a fiduciary, anyway. And I’m sure if one of you had got this letter, I would have had a copy by now.
By the way Tom Coburn and The American Legion is working to get the law changed. The article from 2007 shows that this issue is with the VA not with Obama since TAL has been fighting the law since pre-Obama days.
TSO ADDS:
Like Jonn said, I’ve been involved in this issue for 10 years, so it’s not an “Obama thing.” This predates him even being elected to the Senate.
I don’t think I have ever done this, but I wanted to include a comment from Twitchy from “Gothguy.” I hope he doesn’t mind, but he said EVERYTHING that I would have said, and about 30 times more eloquently. PLEASE READ IT BEFORE HYPERVENTILATING.
Folks,
Having dealt with this extensively when I was a Veterans Advocate, a little clarification is needed. This is not something new, and the VA is not in the gun grabbing business.
What he (the author) has written is misleading on a couple of points (actually, more than a couple). Not just ‘someone in the VA’ can declare a veteran incompetent, the veteran must be diagnosed by a doctor as incompetent during an examination. Once that has happened, the VA does a proposed decision, notifying the veteran of the proposed incompetency, and details with specifics the reason(s) why the proposal is being done. They don’t just get a letter, and it’s a done deal.
The veteran is given 60 days to submit medical evidence as to why the proposal should be overturned. It is a fact that during that 60 day period, the veteran cannot appeal the decision, because the decision hasn’t been finalized, it’s only a proposal or pending decision. Even if the veteran cannot get a letter or statement or other evidence during that time period and the proposal goes into effect, he or she can still appeal that decision, and the VA advises him or her of the appeal process.
I would advise the veteran to get in touch with their doctor and get a statement from him or her stating that the veteran is not incompetent, submit it to the VA, and the proposal would be rescinded.
Further, the author cites the 5th Amendment, well, again, it’s misleading the way he wrote this. The veteran is free to submit evidence, request a pre-determination hearing before being declared incompetent to handle his or her affairs, and trust me, I have participated in those hearing many times over 16 years, and have won virtually all of them prior to the final determination. No 5th Amendment rights are violated.
Also, the author again cites that some nameless person would be appointed by the VA to handle the veterans’ financial affairs. Not true. If the veteran is declared incompetent after all avenues have been exhausted, in virtually all cases, a family member is appointed, and the veteran can even request that a friend be appointed. The VA will interview these people to make sure they understand and agree to be appointed the fiduciary. The only time an outside fiduciary is appointed is if no family member or friend is willing to do it, and that person or agency the VA appoints have under gone extensive background checks, credit checks, etc., and have been approved by the VA.
The VA also has what is called the ‘Guardianship Unit’, which constantly monitors the fiduciaries to make sure they are doing what they are supposed to do.
Finally, the author attempts to make this appear widespread, and that is simply not the case. And, even if a veteran has been declared incompetent for years, he or she can always have that decision overturned…seen it…done it.
And trust me, there are some veterans that are so whacked out mentally, that even I wouldn’t want them to have access to a firearm.
As a disabled veteran, Patriot, and as an American, I am a huge advocate of the 2nd Amendment, but what the author wrote is simply scare mongering, and it does a disservice to veterans.
If anyone knows ANY VETERAN who has been adjudicated as incompetant to handle his fiduciary stuff, but who isn’t absolytely BATSHIT crazy (and/or) who hasn’t threatened to kill themselves or others, than contact us. Seriously. I looked for months and months, and never found one. I’d find someone who was almost perfect, and then we’d find out how he threatened to kill his mom or himself. If you know an actual person that shouldn’t have had this happen, JUST CONTACT US.
Category: Veterans' Affairs Department
The only thing I can add to this is that the law the VA cites requires adjudication by a judge to forward the name to the NICS. These hearings have no judge, and lack the required court order the law calls for, just some pencil pusher making the decision. Cam Edwards was covering a story of a vet in Indiana that voluntarily went in for financial help/counselling and got put on the NICS prohibited person list. But this is an old story, it’s just that the VA is now telling people that they are doing this.
I really want to see an example of who the VA is going after with this BS. It would be very enlightening.
God help us if they assign the administration of this program to the folks who take care of determining eligibility for disability! Can you say super bureaucratic nightmare?
I don’t trust the thieves, politicians and bureaucrats at the VA any further than I can throw the white house.
They do NOT care about the Vets, they care about their salaries, budget bonuses and PR.
A Veteran should never have to fight for his rights, he/she has already fought for them, that’s where the “Veterans” part comes in.
I myself am a veteran and to think that we as veterans have given so much and now they want to take more! When exactly does the fight stop. Veterans always seem to be used and abused and VA Benny’s are getting thinner and thinner. My brothers and sisters donor need anymore crap this nics check for this is the boot of the govt trying to put more restrictions on the veterans stop this !!
Technically the Gun Control Act here states that the person has to have been:
who has been adjudicated as a mental defective or who has
been committed to a mental institution
This is under the “adjudicated as a mental defective” portion. It doesn’t specifically state a “judge” only adjudicated. Which technically is what the VA does.
(Again, I still believe it is unconstitutional unless the VA adjudicates ALSO that the person is a threat to himself or others.)
Is this supposed to encourage anyone to trust or seek assistance from the VA with respect to mental health issues moving forward?
This kind of information would be precisely the reason that some would avoid seeking VA help because they fear that some faceless individual will make a judgment that will be tortuous to overturn and haunt them for years….
I’m curious, TSO: did you really mean “unlawful” or “improper” conduct on the part of the VA vice “unconstitutional” here?
Technically I think it is a violation of Constitutional rights. i.e. the claim would arise under the Constitution, for Due Process claims.
Again, the person is adjudged “defective” only for financial purposes, whereas the NICS list is for those who are dangerous, potentially harmful to self or others. In so far as the VA fails to adjudicate the “harm” element, I think that sending the persons name to NICS violates their due process constitutional rights.
[…] Milblogger John Lilyea has a similar take: […]
TSO: fair enough, and no argument that this appears to be a clear case of deprivation of Constitutional rights absent due process. The disagreement, if any, is as to where that Constitutional violation is occurring.
IMO, it seems that the Constitutional violation is not on the part of the VA – they are reporting data incorrectly under existing Federal law, which is in turn being misused by others to produce a violation of Constitutional rights. The VA can plausibly claim to be merely “erring on the side of caution” based on their interpretation of (allegedly) ambiguous, unclear, or overly-broad Federal law.
The Constitutional violation IMO would be on the part of the NICS personnel who are knowingly accepting such invalid data, then using that known bad data to deny persons rights guaranteed by the Constitution.
The 14th Amendment requires “due process of law” before one can be deprived of life, liberty, or property. I’m pretty sure this equates to “as determined by a court of law” when it comes to deprivation of Constitutionally-protected rights. To revoke one’s right to vote, for example, in general requires a felony conviction.
VA fiduciary hearings are, as fare as I know, administrative determinations vice legal actions. Ergo, one can argue that the VA cannot make any legally binding determination regarding deprivation of Constitutional rights at such hearings, as their proceedings are not courts of law and thus are not empowered to provide “legal due process” – only to make administrative determinations concerning financial matters.
The folks running NICS know (or should know) this full well – e.g., that VA fiduciary hearings are not legal competency determinations but are instead administrative determinations regarding financial matters. Ergo, IMO they – and not the VA – are the ones committing the rights violation by accepting known “bad info” and then using it to deprive an individual(s) of Constitutionally-protected rights.
[…] Milblogger John Lilyea has a similar take: […]
Attached is a pdf link to the 2012 version of ATF Form 4473. See question 11f on page one regarding mental defective and the additional info on page four.
http://www.atf.gov/forms/download/atf-f-4473-1.pdf
In my comment @12, I failed to spotlight the EXCEPTION provision under 11.f on page 4. It is rather important to this discussion.
I’m afraid that too many folks quote blogs as if everything on any blog is a fact. Anybody can start a blog and write anything they want. Well, it seems that even the main media often does that…so we all have to verify anything we read and not always trust it to be a fact. (better verify this to)
@14, you can’t lie on teh internet. Look it up!
@15, That’s how I met a French model.
An answer to question 11f on Form 1443 is self reported. If the VA is not sharing its data (and I would think that under FEMA it could not) regarding certain patients, then I don’t see this as any issue at all.
Forgive me, but I’m still confused. This letter is sent to a veteran who, for whatever reason, has been provisionally judged to be incompetent to handle their financial benefits. Right?
And if they don’t respond within 60 days to appeal the decision that’s already been made, they’ll lose their right to buy, own, or use a firearm because they will have wrongly been flagged by the ATF’s instant background-check system. Is that correct?
So in what way, specifically, is the original analysis wrong or overblown?
2/17 Air Cav: seems to me that exception says, essentially, you’re screwed unless and until the VA changes its mind about you. And the “or” clause in the question 11f seems to imply that either adjudication or determination of possible danger to others is required – not both.
Still: I think a good case can still be made that the determination of an administrative review panel is not the “due process of law” required by the 14th Amendment prior to depriving someone of Constitutional rights.
One can certainly make a reasonable argument that anyone lacking the ability for basic financial management should not own a firearm (I don’t agree that is sufficient, but a reasonable argument can be made). However, owning a firearm is not a privilege granted by the government; it is a right specifically and explicitly guaranteed by the Constitution. Before such a Constitutional right is summarily terminated, IMO one deserves at a minimum the proverbial day in court – not some administrative determination made behind closed doors by an unknown bureaucrat working for the Executive Branch. The former is due process of law; the latter is not.
In any case: until this one gets sorted out better – it will be a cold day in hell before I even think about discussing anything remotely related to mental health with anyone at the VA.
@18, Bryan, see what I added and see if that clarifies it somewhat.
TSO-
While I agree this pre-dates the current admin, I’d wager that there is extreme risk that this admin will turn this process into something not originally intended; otherwise, why would he push 23 Executive Orders? Primarly ORDER NUMBER ONE (from CNN):
1. “Issue a presidential memorandum to require federal agencies to make relevant data available to the federal background check system.”
Now, add Order #2:
2. “Address unnecessary legal barriers, particularly relating to the Health Insurance Portability and Accountability Act, that may prevent states from making information available to the background check system.”
These two, alone, make pushing Sen Coburn’s work to the forefront, before what we see NOW that you’ve worked hard to describe, into something completely different. Codifying something into law to prevent mis-use of this info is doubly important.
The above orders are overly-broad. They could easily encompass this information and change how vets have access to personal protection.
@21. Yes, Coburn tried to address this matter last December but then retreated, as I understand it. The VA determination is evidently presumptive evidence of disqualification and the onus is then placed on the Veteran/patient to either rebut it or to establish that the basis for the alleged disqualification was removed. This is, of course, bassackwards and will be resolved only when a Veteran who answers yes to Form 1443’s question 11f is denied a firearm and appeals it.
TSO, you know that you have to have a LOT of evidence to show that someone is legally incompetent. And yes, it does require a court hearing.
My brother tried to convince me that my mother was incompetent, but when I asked a trusts & estates attorney for whom I worked about this, he told me that it is difficult to prove without extensive evidence. (Since I knew my brother was up to something, I told him later to go pound sand.)
The immediate reaction to that letter is obviously negative, because it appears to be threatening, although it isn’t. And financial incompetence is not limited to vets. It’s simply not knowing how to manage money.
However, while I see no harm in putting someone who can’t manage his affairs into the hands of a financial baby-sitter, I don’t understand what this has to do with having or not having a gun. Financial incompetence has no correspondence to gun ownership. Maybe I’m missing something here.
On the other hand, my experience with the VA people at Lovell FMHCC has been very good. Nice people, happy to do their jobs, and seem to have a good attitude toward vets.
Thank you for posting this!! This has been driving me batshit crazy all day on Facebook. I was not aware that Shinseki had taken it upon himself though to arbitrarily decide not to go against federal law though and not report these guys, but in this one case I will agree with him.
You all have to be careful when you go do your C&P Exams not to imply you are incapable of making legal or financial decisions!! The only other way of course is to request a fiduciary incompetence ruling and appointment of someone to deal with your finances.
When you go buy a gun or apply for a license to carry they ask if you have been deemed incompetent…
Code of Federal Regulations Title 38: Pensions, Bonuses, and Veterans’ Relief PART 3—ADJUDICATION § 3.353 Determinations of incompetency and competency. (a) Definition of mental incompetency. A mentally incompetent person is one who because of injury or disease lacks the mental capacity to contract or to manage his or her own affairs, including disbursement of funds without limitation. (b) Authority. (1) Rating agencies have sole authority to make official determinations of competency and incompetency for purposes of: insurance (38 U.S.C. 1922), and, subject to § 13.56 of this chapter, disbursement of benefits. Such determinations are final and binding on field stations for these purposes. (2) Where the beneficiary is rated incompetent, the Veterans Service Center Manager will develop information as to the beneficiary’s social, economic and industrial adjustment; appoint (or recommend appointment of) a fiduciary as provided in § 13.55 of this chapter; select a method of disbursing payment as provided in § 13.56 of this chapter, or in the case of a married beneficiary, appoint the beneficiary’s spouse to receive payments as provided in § 13.57 of this chapter; and authorize disbursement of the benefit. (3) If in the course of fulfilling the responsibilities assigned in paragraph (b)(2) the Veterans Service Center Manager develops evidence indicating that the beneficiary may be capable of administering the funds payable without limitation, he or she will refer that evidence to the rating agency with a statement as to his or her findings. The rating agency will consider this evidence, together with all other evidence of record, to determine whether its prior determination of incompetency should remain in effect. Reexamination may be requested as provided in § 3.327(a) if necessary to properly evaluate the beneficiary’s mental capacity to contract or manage his or her own affairs. (c) Medical opinion. Unless the medical evidence is clear, convincing and leaves no doubt as to the person’s incompetency, the rating agency will make no determination of incompetency without a definite expression regarding the question by the responsible medical authorities. Considerations of medical opinions will be in accordance with the principles in paragraph (a) of this section. Determinations… Read more »
[…] Jonn and TSO provide some clarity. […]
[…] Having said that, there is little doubt that some vets will be mentally shattered and should probably be under psychiatric care until such time that they are ready to re-enter society safely. Even still, there will be workarounds. […]
In regards to the VA Fiduciary Program, here is a number of links to articles towards the bottom of this page which describe how badly run the program is.
http://www.vawatchdog.org/Fiduciary_Appointments.html
When you consider the history of this program and the number of abuses that have occurred in it, any disabled vet should be scared as hell if this is ever mentioned to them. In particular to really see the excesses of the program look up the court case: Freeman vs. Shinseki.
If it saves one the life of one fiduciary
http://www.attiglawfirm.com/blog/va-benefits/veterans-benefits-the-va-fiduciary-program-is-a-colossal-failure-to-those-who-served/
[…] via That VA letter going around. […]
There’s a saying: “I love my country. It’s my govt that I don’t trust.” I have seen more than one person diagnosed with severe PTSD because the shrink noticed they had no symptoms of it, hence “they were so severely affected that they were in denial of it.” While no one returns from war unchanged, those changes are not necessarily negative, nor abnormal, and certainly not, in general, dangerous to others or themselves. “Financial incompetence” can precede or succeed those changes, without regard to safe handling of weapons, and school trained, combat inexperienced shrinks are unlikely to comprehend the realities of those changes. No, I would not trust a conglomeration of politicians, political appointees, shrinks, and bureacrats with my rights, no matter how much money they offered me in disability payments each month for it. Not even if I believed the current administration would not abuse the information, would I trust that the next wouldn’t, but given the statements of this Administration, I most definitively do not trust it (Neopalitano, Shinsucki, Dempsey, even McCrystal, and their boss Obama have all demonstrated a desire to institute ‘orders’ to protect us from ourselves.) As per the Bill of Rights, my rights shall not be removed without “due process,” and that includes my 1st, 2nd, 4th, and 5th Amendment Rights. These enumerated Rights were not granted, but merely re-inforced by the Constitution, as the Founders wrote in the Declaration of Independence. They are “inalienable Rights” given us by God. We, the People, grant the government power, not the other way around. Why wouldn’t I trust the government? The same government that said it wouldn’t balance the budget on the backs of Veterans, and would bear true faith with Troops? The same politicians that said they won’t come after our guns? The same government that wrote that Veterans pose the greatest risk for terrorist attacks, or that those that support the Constitution are extremists? The same govt that tells us to shot all loaded ammunition in the air, off our porches, if we here a bump in the night? Or that women can’t be… Read more »
@31. That’s good stuff, TN. Damn good stuff.
It is unfortunate that Veterans have experienced the full effect of bureacracy, and hence have such a disregard for it.
Here is where the next shoe drops: Our friends on the left have been working hard to get PTSD defined as a “mental disorder” and listed in “The Diagnostic and Statistical Manual of Mental Disorders” (DSM) published by the American Psychiatric Association.
Why, you ask? because if it can be so listed, then those diagnosed with PTSD can be easily prohibited from owning or having access to firearms. All that has to be done is have the VA diagnose you with PTSD, and then the mandatory reporting part will kick in and “voila!” millions of veterans instantly disarmed.
Paranoid you ask? Nope. You aren’t paranoid when someone really IS out to get you. This administration wants badly to neuter the 2nd amendment. There’s a very real reason why various agencies are buying BILLIONS of rounds of ammo: Back door gun control. Hard to use a weapon without ammunition. Now the push is for “mental health services” instead of more blatant gun laws. Why? Again, back door gun control. Easier to disarm folks by using the “mental disorder” excuse, and mandating that anyone diagnosed with any sort of “mental disorder” (PTSD, if recognized as such) be reported to the NICS.
It really is that simple. through back-door gun control actions and executive orders, there is a consistent and disconcerting chipping away at the 2nd amendment (and other rights) and it needs to be stopped.
This is terrifying. This scares the shit out of me.
Who the fuck are they to say “If this guy is having problems with his finances, take his gaurdianship away.”
Better take away the gaurdianship of half of current active duty soldiers as well if that’s the case.
Forget the gun stuff right now, what judges you as “finacially incompetent”? You do realize if your gaurdianship is taken you can legally be locked away in a group home for the rest of your life without the possibility of parole, due to some random pencil pushers decision?
What 11BScottie says…….
AW1 Tim describes the concern I have about this to a “t”. I do not like the idea of government encroachment, period. We’ve already been added to Big Sis Napolitano’s “enemies” list, (http://sfcmac.wordpress.com/2009/04/15/enemies-of-obamas-state/) so you can imagine the implications of this particular VA regulation. Okay, so there’s a “due process” involved with declaring a veteran “incompetent”, but as with any other reg, it can be abused. Come to think of it, there’s a lot of bat-shit crazy politicians in this country, but they’re still allowed to roam the halls of Congress.
[…] http://valorguardians.com/blog/?p=34265 […]
I wonder how this might affect police, fire and EMT personnel who suffer from their job experiences and medically retire or are deemed unfit. Silence.
These liberals are out of fucking control. OK, under this theory, the millions on welfare, and those in the ghettoes, being that they live paycheck to paycheck and can’t even pay bills due to narcotic purchases being more imortant for some, why doesn’t the left take all their gaurdianships away? Why? Why not? Huh? Why? They obviously are not competent enough to make decisions on their own….
Under this, over half of the American population would qualify to have their gaurdianship stripped. Think about it.
It’s a form a slavery. It’s genious on liberals behalf. Take away free will and or lock up everyone against them in group homes once their gaurdianships are stipped. It’s genious really. You are not your own gaurdian, you have no free will. You are a slave that someone will keep around locked up to collect your VA/social securiy check. You leave the home? The police bring you right back. “Because it’s in your best interests according to your gaurdian”
[…] […]
[…] […]
[…] Milblogger John Lilyea has a similar take: […]
I don’t believe ANYTHING that has Shinseki’s name anywhere associated with it. He is a liar and was a horrible general (not capitalized for a reason). He was and still is nothing but a yes man and soley interested in self preservation.
Due to the combination of my physical issues and depression(all rated), VA VocRehab said that I would not be ale to be gainfully employed, and gave me the name of a SS benefit law firm to handle my SS case (as the first application is almost always denied). On the appeal, I had to go before the administrative law judge. I do have a history of recreational drug use over the years (and i don’t lie o the docs when asked) and had recently started smoking weed a few times a week at night and I popped on a pee test for my VA doc, as I was prescribed hydrocodone for the persistent pain from my major joints. He said that if I continued to smoke, he would have to terminate my hydrocodone script in accordance with VA regs. So
So the ALJ said that in light of the documentation from the VA, and 2 independent docs, that he would award me SS, but due to my drug history, he was appointing a payee for the SS benefits.
Never mind that even on my limited income I was paying my bills, and raising my daughter as a single parent, on my previous VA ‘award’ and my VA housing stipend while going to school full time.
Was I ‘perfect’? Not by a long shot, but I wasn’t a threat to anyone or myself. But according to he wording on the 4473, question 11f, I might have been a prohibited purchaser, as i had to have a payee for my SS.
It’s pretty vague.
@46, AMEN to that! Shinseki will always be remembered as the “Everyone gets a beret now, all the Army’s problems are solved!” Pentagon politician with stars. Many a Grunt like me still believes that the Black Beret is a piece of headgear that should have stayed “RANGERS ONLY”, and I’m just an everyday leg!
[…] This Ain’t Hell, But You Can See It From Here […]
[…] see above about California, firearms ownership, and “access”. And for the second: the VA is already reporting those who require a financial conservator as “mentally deficient” to NIC… unless those individuals can convince the VA […]