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One Soldier's Legal Battle With the Department of Veterans Affairs

veteransaffairs_othbartobenefits_toescapetrialbygeneralcourtmartial

The Story of Bruce v. McDonald, USCAVC Docket 15-3237

Larry Bruce injured his foot in basic training. The VA denied his compensation claim under 38 CFR § 3.12(d)(1). The US Court of Appeals for Veterans Claims determined the VA was wrong.

Background

Larry Bruce served on active duty in the US Army from January 1972 to January 1975 and from December 1976 to December 1980, receiving an honorable discharge from each enlistment. Intending to make the Army his career, he reenlisted in March 1988. Because of the over seven year gap between his second enlistment and the third Larry was required to go through basic training again, this time at Ft. Dix, New Jersey. Early-thirties old Larry injured his left foot while running on the crushed stone physical training track at Ft. Dix.

Larry did not know it at the time, but he had broken both a toe and the joint connecting the toe to his foot. Military medics misdiagnosed the injury as a sprain and prescribed aspirin, Ace bandages, and crutches. The swelling and pain made it impossible to meet the physical training requirements of basic training but sympathetic drill sergeants who admired his effort graduated Larry and passed him along to his military occupational specialty (MOS) school at Ft. Eustis, Virginia. His inability to make progress in the physical portion of his MOS training created the perception among his MOS instructors, chain of command, and chaplain that he was malingering. Larry found himself in constant pain, punished for lack of progress by restriction to barracks when not in training or at meals, not authorized to wear civilian clothes at any time, and with no liberty. Larry requested reassignment to duty in the MOS he had performed so well (Letters of Appreciation, above average performance evaluations) during his first and second enlistments but the request was denied. After exhausting the resources of his chain of command, medical staff, and the chaplain, Larry considered his situation hopeless. He made the mistake of leaving his unit without approval (absent without leave) in pursuit of civilian medical care.

Larry recognized that what he had done was wrong. Forty two days later he voluntarily turned himself in to Army authorities at the closest military base to his home, Fort Benjamin Harrison near Indianapolis. He was transferred to the transient personnel company barracks, Fort Knox, Kentucky to await disposition.

On July 26, 1988, six days after he turned himself in, Larry was issued a preferred charge sheet with an allegation of unauthorized absence. He was told by a senior non-commissioned officer that he had the option of being discharged “for the Good of the Service” without going through any other proceedings and that the entire matter would be over. The sergeant major did not want to hear about Larry’s injury or about why Larry had felt he had to leave to obtain treatment. It was clear to Larry that nothing would change the Army’s perception that he was a malingerer not worth training.

Larry agreed to the other than honorable discharge and it was executed in October 1988. The statement on the separation form was ‘in lieu of court-martial’. He was never advised that his unauthorized absence violation had been referred to any disciplinary forum, whether non-judicial punishment, summary court-martial, special court-martial or general court-martial. There is no evidence or record that suggests any convening authority referred Larry’s 42-day unauthorized absence offense to an Article 32 investigation or a court-martial of any kind.

Result

The damage done to Larry’s foot was permanent. Civilian doctors advised that neither the bones nor the medical conditions that had ensued from the untreated injury could be fully repaired. Orthopedic surgeon Matthew Parmenter surgically repaired and/or replaced the broken bones in Larry’s foot as much as possible in 2000, twelve years after the injury. The medical record of that procedure describes removing bone fragments and other damaged tissue.

During the 1990s Larry found employment as a custodian for Indiana University, Bloomington, Indiana in spite of his Other Than Honorable discharge. His employer provided health insurance enabled Dr. Parmenter's surgery. (Larry and I both believe his limping while performing his custodial tasks for years because of his left foot harmed his back - but that's another story: service connection rated by the VA as secondary to an established service connected disability.)

Compensation Claim Filed with the Department of Veterans Affairs

February 2005: Monroe County Veterans Service Officer John W. Tilford assisted Larry in filing a claim for service connected disability compensation for his foot injury incurred at Ft. Dix in the spring of 1988. Larry’s official Army medical records documented the injury (description of symptoms, date, time, location, and erroneous sprain diagnosis) and the Army’s “treatment” (crutches, Ace bandages, and aspirin). An MRI would have clearly shown the internal damage. Evidently a crippled Private First Class did not merit an MRI scan, even though MRIs were available in the 1980s. An X-ray would have shown the bone break. Evidently a crippled Private First Class did not merit a common X-ray.

The Series of VA Denials Begins

December 2005: The first Indianapolis VA Regional Office denial, via official correspondence as a response to his application for compensation, was based on Larry’s character of service for his last enlistment being a bar to VA benefits (other than his VA medical benefits, which are based on his earlier enlistments from which he received fully honorable discharges). The only authority ever cited by the Indianapolis VA Regional Office for considering Larry’s most recent character of service a bar is 38 Code of Federal Regulations § 3.12(d)(1) which states “Acceptance of an undesirable discharge to escape trial by general court-martial” [emphasis added]. Tilford thought, “Well, this is obviously an error. Somebody was in too much of a hurry to close a case and did not take time to do their research.” Maybe the VA employee had no military experience and did not realize how expensive, difficult to justify and convene, therefore requiring a full-fledged Article 32 investigation or approved waiver of the Article 32, and rare are general courts-martial. A general court-martial can sentence a commissioned officer, up to and including a full general, to death. More pertinent to Larry’s situation, a general court-martial can order a dishonorable discharge whereas a special court-martial can order a bad conduct discharge. It is now and was in 1988 extremely unlikely a 42 day AWOL violation during peace time, from a student status assignment with no assigned mission responsibilities, by a Private First Class, who had already served two honorable enlistments, who voluntarily turned himself in, mitigated by a clearly service connected disability, could support convening or even consideration of a general court-martial – especially if the Army’s objective was to separate a perceived malingerer as quickly and simply as feasible. A bad conduct discharge would have been ‘over kill’ and Larry actually was separated with an ‘other than honorable’ discharge. The plain language of the regulation is clear and unambiguous. All the other bars in 38 CFR § 3.12(d) are felony-equivalent and/or harm national security, such as aggravated homosexual rape (aggravation by abuse of rank example from the regulation text: a male drill sergeant raping a male recruit), mutiny, or spying. Larry’s AWOL didn’t hurt anyone other than himself and did not harm the United States in any way. Tilford, “This seems like an almost clerical error. I’ll advise Larry to appeal, but to appeal to the lowest level possible – the DRO. We should be able to get this settled quickly.” In retrospect, to say I was wrong would be putting it mildly.