Monday, August 18, 2008

Ipso Facto

We are posting the comments of one of our readers, a fellow Blue Water Navy Veteran of the Vietnam War. Without further ado:

"I, like others, have been on an emotional roller coaster throughout the VA’s Agent Orange proceeding. Enraged that the VA would take away benefits of Blue Water Navy Vietnam veterans after over 10 years of extending us the presumption of exposure to Agent Orange but euphoric when the Veteran’s Court overturned the VA’s ruling. Dejected when the VA decided to Appeal that decision, but encouraged when I read the NVLSP’s compelling brief before the U.S. Court of Appeals. Depressed when the U.S. Court of Appeals in a split decision bought the VA’s illogical and deceptive arguments, but ecstatic when Chairman Filner introduced H.R. 6562, the Agent Orange Equity Act of 2008.

"But the ecstasy of H.R. 6562 was short-lived. Within a few days of the Chairman’s introduction of this bill, once again worry began to creep in when I began reading complaints at various veteran’s forums on-line that veterans who served in distant places throughout the world (for example Florida and Guam) were not included and that Congress needed to be pressured to expand the bill to include them. And then, the other day you mentioned to me that you read someone saying things like “our bill, H.R. 6562” and “of course the Blue Water Navy should get their benefits” when talking about adding an expansion to the time when Korean DMZ troops were exposed. Upon hearing this, worry turned into a feeling of hopelessness as I slowly began to realize that each additional area would bring unique sets of circumstances and added layers of complexity and controversy, the weight of which would surely sink H.R. 6562.

"Before I go on, please understand that I do not wish that anyone who was exposed to AO and is suffering from its effects be denied medical and other benefits by the VA, but for years we have been pressing Congress to restore benefits that the VA at first extended but later revoked. H.R. 6562 was meant for precisely this purpose, and for us or anyone to go to Congress now and ask them to change this bill so as to extend coverage outside of the Vietnam area of operations, areas that were never intended by Congress to be included in the Agent Orange Act of 1991 (the 1991 Act), would, in effect, be moving the goalposts now that we are finally in scoring position. In fact, it would be more than moving, it would be relocating them to another stadium.

"As I read H.R. 6562 and understood Chairman Filner when he introduced it, he heard our desperate plea and is proposing a clarification of the intentions of the 1991 Act so as to reaffirm that Congress meant for the presumption of exposure to be extended to veterans who served in the Republic of Vietnam and the vicinity of Vietnam. This is what we asked for. Moreover, there are no reasonable interpretations of the 1991 Act that would include anyone exposed to AO outside of the Vietnam area of operations such as Guam, Florida, Korea, to name a few. This is not to say that exposure did not occur. What I am saying is that to include such far away countries is anything but a "clarification" and would, in fact, represent a total rewrite of the 1991 Act. It seems to me, as difficult a time as we have had getting the clarification introduced in Congress, to now in the final days of the 110th Congress to demand a total overhaul of the 1991 Act would be irrational and would surely doom passage of this bill.

"I am not all that knowledgeable of AO exposure outside of Vietnam or the laws or regulations regarding such , but it seems to me that there are soldiers who were exposed in Korea, for example, who are getting benefits from the VA due to exposure to AO, but those benefits are not extended pursuant to the 1991 Act. Rather, as I understand it, they are covered under a different law, the Veterans Benefit Act of 2003. So just as these Korean veterans have AO coverage that is associated with a statute other than the 1991 Act, so should those in Florida, Guam, and other places outside of the vicinity of Vietnam who may have been exposed to AO. And if Korean veterans’ coverage is to be expanded, it seems to me that it should be done by amending the Veterans Benefit Act. But, in any event, the intricacies, complexities and controversies that each additional distant country would add to H.R.6562 would be impossible to resolve in the short time that is left in the 110th Congress.

"Once again, I do not want to leave anyone behind. I just think that it would be more appropriate to cover non-Vietnam veterans in legislation separate from H.R. 6562. Or after the successful enactment of H.R. 6562 into law, then begin an effort to totally rewrite the Agent Orange Act if the facts warrant it. But to try such a major expansion of coverage now would ruin any chance of passage of H.R. 6562 this year and, perhaps, forever - a result that would benefit no one, anywhere."

--A Blue Water Vietnam Veteran

Wow! I'd like to thank the reader who sent this to me for publication for such a well reasoned statement of an issue that soon will come to a head. There are forces at work on HR 6562 that purport to be making enormous changes to the bill, adding in verbiage that will include Veterans from many places outside the Vietnam War theater, demanding benefits for them. While Filner's bill is ripe for modification, it actually is intended simply to restore the Vietnam Service Medal as the criteria for automatic presumption of exposure to Agent Orange [herbicides] in Veterans who served in Vietnam, in off shore waters, in the skies above Vietnam, and in Thailand, Laos, and Cambodia.

The writer is correct. Such additions as are being plotted by proponents of benefits for those who served outside the Vietnam Theater of operations should, rightly, be written as an amendment to the Veterans Benefit Act of 2003, not HR 6562. In actual fact, there is no codified authority for the payment of benefits to the Veterans of service on the Korean DMZ. It is done by the Secretary of Veterans Affairs on the report from the Department of Defense of the use of herbicides on the South Korean side of the DMZ in 1968 and 1969.

What is codified is done in the Veterans Benefit Act of 2003. Here are the applicable sections of what Congress enacted as changes to Title 38 United States Code, Part 2:

SEC. 102. BENEFITS FOR CHILDREN WITH SPINA BIFIDA OF VETERANS OF CERTAIN SERVICE IN KOREA.

    (a) IN GENERAL- Chapter 18 is amended--

      (1) by redesignating subchapter III, and sections 1821, 1822, 1823, and 1824, as subchapter IV, and sections 1831, 1832, 1833, and 1834, respectively; and

      (2) by inserting after subchapter II the following new subchapter III:

`SUBCHAPTER III--CHILDREN OF CERTAIN KOREA SERVICE VETERANS BORN WITH SPINA BIFIDA
`Sec. 1821. Benefits for children of certain Korea service veterans born with spina bifida

    `(a) BENEFITS AUTHORIZED- The Secretary may provide to any child of a veteran of covered service in Korea who is suffering from spina bifida the health care, vocational training and rehabilitation, and monetary allowance required to be paid to a child of a Vietnam veteran who is suffering from spina bifida under subchapter I of this chapter as if such child of a veteran of covered service in Korea were a child of a Vietnam veteran who is suffering from spina bifida under such subchapter.

    `(b) SPINA BIFIDA CONDITIONS COVERED- This section applies with respect to all forms and manifestations of spina bifida, except spina bifida occulta.

    `(c) VETERAN OF COVERED SERVICE IN KOREA- For purposes of this section, a veteran of covered service in Korea is any individual, without regard to the characterization of that individual's service, who--

      `(1) served in the active military, naval, or air service in or near the Korean demilitarized zone (DMZ), as determined by the Secretary in consultation with the Secretary of Defense, during the period beginning on September 1, 1967, and ending on August 31, 1971; and

      `(2) is determined by the Secretary, in consultation with the Secretary of Defense, to have been exposed to a herbicide agent during such service in or near the Korean demilitarized zone.

    `(d) HERBICIDE AGENT- For purposes of this section, the term `herbicide agent' means a chemical in a herbicide used in support of United States and allied military operations in or near the Korean demilitarized zone, as determined by the Secretary in consultation with the Secretary of Defense, during the period beginning on September 1, 1967, and ending on August 31, 1971.'.

    (b) CHILD DEFINED- Section 1831, as redesignated by subsection (a) of this section, is amended by striking paragraph (1) and inserting the following new paragraph (1):

      `(1) The term `child' means the following:

        `(A) For purposes of subchapters I and II of this chapter, an individual, regardless of age or marital status, who--

          `(i) is the natural child of a Vietnam veteran; and

          `(ii) was conceived after the date on which that veteran first entered the Republic of Vietnam during the Vietnam era.

        `(B) For purposes of subchapter III of this chapter, an individual, regardless of age or marital status, who--

          `(i) is the natural child of a veteran of covered service in Korea (as determined for purposes of section 1821 of this title); and

          `(ii) was conceived after the date on which that veteran first entered service described in subsection (c) of that section.'.

    (c) NONDUPLICATION OF BENEFITS- Subsection (a) of section 1834, as redesignated by subsection (a) of this section, is amended by adding at the end the following new sentence: `In the case of a child eligible for benefits under subchapter I or II of this chapter who is also eligible for benefits under subchapter III of this chapter, a monetary allowance shall be paid under the subchapter of this chapter elected by the child.'.

    (d) CONFORMING AMENDMENTS- (1) Section 1811(1)(A) is amended by striking `section 1821(1)' and inserting `section 1831(1)'.

    (2) The heading for chapter 18 is amended to read as follows:

`CHAPTER 18--BENEFITS FOR CHILDREN OF VIETNAM VETERANS AND CERTAIN OTHER VETERANS'.

    (e) CLERICAL AMENDMENTS- (1) The table of sections at the beginning of chapter 18 is amended by striking the items relating to subchapter III and sections 1821, 1822, 1823, and 1824 and inserting the following new items:

`SUBCHAPTER III--CHILDREN OF CERTAIN KOREA SERVICE VETERANS BORN WITH SPINA BIFIDA

      `1821. Benefits for children of certain Korea service veterans born with spina bifida.

`SUBCHAPTER IV--GENERAL PROVISIONS

      `1831. Definitions.

      `1832. Applicability of certain administrative provisions.

      `1833. Treatment of receipt of monetary allowance and other benefits.

      `1834. Nonduplication of benefits.'.

    (2) The table of chapters at the beginning of title 38, United States Code, and at the beginning of part II, are each amended by striking the item relating to chapter 18 and inserting the following new item:

1802'.

As you can see, the above amendments to Title 38 United States Code, Part 2, Chapter 18 contains the section that says:

    `(c) VETERAN OF COVERED SERVICE IN KOREA- For purposes of this section, a veteran of covered service in Korea is any individual, without regard to the characterization of that individual's service, who--

      `(1) served in the active military, naval, or air service in or near the Korean demilitarized zone (DMZ), as determined by the Secretary in consultation with the Secretary of Defense, during the period beginning on September 1, 1967, and ending on August 31, 1971; and

      `(2) is determined by the Secretary, in consultation with the Secretary of Defense, to have been exposed to a herbicide agent during such service in or near the Korean demilitarized zone.

Herein is the definition of coverage for Veterans who served in Korea. It is codified in Chapter 18.

The Agent Orange Act section applicable to Vietnam is in Chapter 13. Obviously, any additional legislation to add locations outside the Vietnam Theater of War will belong in Chapter 18, not Chapter 13. HR 6562 is applied to Chapter 13. It is therefore not suitable or appropriate to shoehorn non Vietnam Theater Veterans into HR 6562.

Understand, that the above paragraph applies as the definition of service in Korea for the purposes of giving benefits for Children of these Veterans who have Spina Bifida, a genetic birth defect often found in the children of Veterans exposed to Agent Orange. Nevertheless, it is the definition of who is eligible, who Congress has recognized as eligible for benefits for exposure to Agent Orange. Note that it does say that the benefits will be the same as the benefits for the Children of Vietnam Vets, yet this remains in Chapter 18 because the qualifying criteria are quite different, the dates , location, and specific units are quite different than those who served in Vietnam and are covered under the Agent Orange Act of 1991. And of principle importance is the fact that those who served in Korea did not receive the Vietnam Service Medal for that service. Again, that's why the Korean definition is in Chapter 18, not Chapter 13 with the Vietnam regulations.

This, then, is a gift for those seeking benefits for Agent Orange presumption in locations other than the Vietnam Theater of War, for here is the Congressional and Department of Defense admission that troops in Korea were exposed, ipso facto.

Those folks who are leading the effort to add the locations outside of the Vietnam Theater of War to HR 6562 are convinced they are making an effort that will force Congress to accede to their will. Most Blue Water Navy Veterans are totally unaware of this effort and would be shocked at who is involved with it. We will let those individuals come forward on their own to state their case publicly. The Blue Water Navy Sailors should have had a full understanding of what some of their leaders were trying to do, but this was not the case. It is being done in secret, and no dissenting arguments are permitted.

And their actions will likely torpedo HR 6562 if they continue on the course they have charted.

It is unfortunate that there are those among us, leaders among us, who would risk everything, that is risk the future legacies of all Blue Water Navy, Blue Sky Air Force, and TLC [Thailand, Laos, and Cambodia] Veterans for a fundamental error of logic, reason, and common sense. Apparently it is more important to be important than to be correct.

We would add one other truth to this. Only Congress [legally] and the DVA [illegally] can leave someone behind. Accusations from one Veteran to another that he would leave a fellow Veteran behind are despicable, and beneath contempt.

There is much to ponder here. There is much to consider in terms of wrapping your mind around all of this. We will not name any names. It should not be necessary. But you have the right to know, no, the imperative to know what your leaders are up to, and how their actions will likely affect you.

VNVets

”It is a stain on this nation's honor that the Department of Veterans Affairs has become a deadlier and more difficult adversary to the American veteran than any they have ever faced on a battlefield."-- VNVets

"The concept that Agent Orange, and its effects, stopped dead in its tracks at the shoreline is simply too illogical, and too ludicrous to accept. What does that say about the Bush Administration and his Department of Veterans Affairs?"--VNVets

"With malice toward none; with charity for all; with firmness in the right, as God gives us to see the right, let us strive on to finish the work we are in; to bind up the nation's wounds; to care for him who shall have borne the battle, and for his widow, and his orphan--to do all which may achieve and cherish a just and lasting peace, among ourselves, and with all nations." --President Abraham Lincoln

"Without a decisive naval force we can do nothing definitive, and with it, everything honorable and glorious."--President George Washington

Copyright © 2005-2008: VNVets Blog; All Rights Reserved.

8 comments:

  1. Anonymous11:13

    It looks to me as if some of our "leaders" may be on the DVA payroll. Either that or their status as the grand pubahs has gone to their heads. The article is right on and states my position100%. But, you have to remember in at least one of these BWN organizations The so-called management was not chosen or elected by the members....they are self appointed and the membership is kept in the dark. We must mushrooms to quote an old Navy saying " we are kept in the dark and fed bullschitt".

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  2. Anonymous01:25

    The statements made by Mr. Davis are so far from the truth as to be ridiculous. Nothing is done in secret, and it was his bombastic comments that kept him from having input. He is the only "leader" and I use the term loosely, that wants to take credit for anything.
    Read the act and pray you are Brown Water Navy, the only ones who as written will be helped. No one should care about the legacy of BWN or TLC. They should only care about the legacy of those who have died, and the struggle of their widows.

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  3. Anonymous09:41

    Terrific! Just what we need at this stage of the game is a pissing contest between the groups.
    There appears to be a chance we will make it happen and everyone wants to make sure they get the credit.... Suggestion: work together and get HR 6562 Passed and THEN hold a major pissing contest to see who did the most!

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  4. No offense, but
    we think you have totally missed the point. There is no pissing contest on our part. We are fighting for the survival of a bill intended to restore benefits to us.

    Others are trying to weigh down the bill with so much extraneous material as to make the bill cumbersome, and likely unpassable, at least in this session, and probably in the next session as well. The included material requires many hours of committee hearsing, testimoy and evidence that must be sifted through by Congress at each step of the way. Much of the material and issues included are new to Congress, although not unknown to members of Congress.

    We are pointing out that their efforts would be better used in drafting a new bill that adds the groups exposed to Agent Orange from outside the Vietnam Theater of War.

    We do not feel they should not be covered. We feel their inclusion in HR 6562 would sink or delay the bill, perhaps by years, a feeling confirmed by a phone call to the HVAC office today.

    HR 6562 has a single purpose, and that is to clarify Congressional intent as to who was/is included under the umbrella of the Agent Orange Act of 1991.

    That purpose, once enacted will affect those Veterans who manifest any of the Agent Orange dieases out of a population of about 800,000 Veterans who served off shore during the war.

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  5. Anonymous16:10

    You may be correct, not that there is no "pissing contest" but that you are not involved. On the other hand, reading the comments and, indeed, some of your own imput, would at least give the impression a large scale game of "Who-shot-John?" is in progress and it would appear that I am not alone in thinking this. You have done us all such a great service thus far, I would hope you would keep the final target in sight and we should work to see that Filner and company do the same....nobody can change his bill while it's still in committee but him.

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  6. We live and breathe to see that HR 6562 gets enacted. We are working our butts off to try and get it enacted this year...if we can keep it simple. We have been in touch with Filner's staff accordingly.

    In the next day or so we will present what we think Congressman Filner has in mind.

    Stay tuned. And keep up the efforts to get Congressional support. We cannot stop now.

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  7. Anonymous16:54

    what the hell are these people thinking about. we are already having problems extending it to the vicinity or outside the landmass of Vietnam and they want to add more far away places from vietnam. i feel that these person/s real intentions is to derail HR 6562. I can only suspect that ther are getting paid or brive by external forces.
    keep up the good work. I don't what they say about you guy. yours is the only onr thst kept mr informed. bravu zulu.

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  8. Anonymous21:47

    Fire 1....Fire 2....Fire 3. All torpedoes running straight, hot and true. Damage report...target took 3 direct hits and is on fire and sinking. The USS Blue Water was torpedoed and sunk by her own allies. How many more must die???

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