By Michael Connelly
Investigations by the United States Justice Foundation (USJF) into the plight of our military veterans and the assault on their Second and Fifth Amendment rights continues to uncover a disturbing pattern that confirms the VA is violating the Constitutional rights of America’s heroes on a daily basis.
The investigation included two separate requests to the VA under the federal Freedom of Information Act (FOIA). USJF asked for the criteria used for appointing a fiduciary for veterans to handle their financial affairs and for information on the criteria for adding such veterans to the list of Americans ineligible to buy firearms. The legal deadline for a response from the VA has passed and requests have been totally ignored.
Between the information USJF is receiving from veterans around the country and research of the law and history of the VA fiduciary program USJF was able to come up with a timeline of what has happened and is happening to our veterans. While the VA fiduciary program has been in place for years it was designed to appoint someone, usually a family member, to handle the VA payments for veterans who were unable to handle these financial matters themselves because of some type of severe mental problem such as dementia.
In February 2012, Subcommittee on Oversight and Investigations (O&I) Chairman Bill Johnson (OH) alerted the VA of the conviction of a VA fiduciary and a VA field examiner, who in Tennessee embezzled $900,000 from ten veterans’ accounts they oversaw. Citing “gross misfeasance” by the VA fiduciary system, Johnson said, “Identifying and correcting situations like these is certainly not rocket science.”
“VA policy is that they prefer family members and friends to serve as fiduciaries. However, we have come across examples that show this is not the case,” Johnson said. “For instance, the VA arbitrarily removed a veteran’s wife from her duties as his fiduciary after what the VA characterized as ten years of excellent service. She was replaced by a paid fiduciary. It appears to me that this policy is just lip service. And that needs to change.”
When an inquiry was sent asking for resolutions proposed for these problems,
an email response from Curt Cashour, House Committee on Veteran’s Affairs, inquired about the publication, then did not give a response.
While these problems are ongoing and have existed for years, the problems regarding the Second amendment rights of veterans are much more recent.
In 1993 Congress passed the Brady Bill that mandated a national background check system that was designed to keep convicted felons and those individuals declared mentally defective and found to be a danger to themselves or others from being able to legally purchase firearms.
In 2007 the Congress passed some ill advised amendments to the National Instant Criminal Background Check System (NICS). The amendments were in response to the Virginia Tech shooting, (which did not involve a veteran) and were designed to make sure that people adjudicated to be “mentally defective” were on the list. The disqualification criteria have remained the same- a person had to be found to be a danger to themselves or others or “lack the mental capacity to contract or manage his own affairs.” Nearly 130,000 veterans names are listed in the NICS system.
Since that amendment was adopted, the VA has decided all veterans who are deemed by the VA as “incompetent” to handle their VA payments are also ineligible to purchase or own firearms.
There is absolutely nothing in the NICS criteria that states that those with physical disabilities belong on the list of individuals prohibited from owning firearms, yet the VA specifically states in their letter to veterans that this is part of their criteria.
An unknown number of veterans across the country are currently receiving a letter from the VA that states, “This evidence indicates that you are not able to handle your VA benefit payments because of a physical or mental condition.”
In addition, USJF investigation has found that the VA is using reasons such as minor depression, minor PTSD, and even minor short-term memory loss as grounds for declaring veterans “mentally defective.” In some cases, the veterans are not even given a reason.
It has also become clear that there has been a rapid acceleration over the last few years in the efforts by the VA to declare veterans incompetent and deny them the right to possess firearms. Veterans who go to the VA for routine checkups or for treatment of physical illnesses are routinely asked if they own firearms.
“A determination of incompetency will prohibit you from purchasing, possessing, receiving, or transporting a firearm or ammunition. If you knowingly violate any of these prohibitions, you may be fined, imprisoned, or both pursuant to the Brady Handgun Violence Prevention Act, Pub.L.No. 103-159, as implemented at 18, United States Code 924(a)(2).”
In fact, this is apparently a required question that all VA employees must ask of all veterans. Veterans, who no longer suffer from mental health conditions, have petitioned for “relief from disabilities” to have their names removed from NICS. In a majority of cases, those petitions are denied.
It appears that virtually anything can trigger an attempt by the VA to declare a veteran incompetent and deny them their Second Amendment rights. The Constitutional requirements of due process are completely ignored and veterans must fight this on their own, at their own expense.
Some veterans have reported that if they even attempt to resist the declaration of incompetence, the VA is threatening to, and in some cases, is actually withholding the monetary payments to the veterans unless they agree to the VA declaration.
USJF research has determined that there are at least four separate categories of veterans that the USJF needs to represent in either administrative actions or in court. They are:
1. Veterans who have received a letter from the VA threatening to declare them incompetent, but no decision on competence have been finalized.
2. Veterans who have received the letter and been declared incompetent and added to NICS list for unjust reasons.
3. Veterans who have been declared incompetent and had it reversed, but are still on the NICS list.
4. Veterans who have received the VA letter and are having their VA funds withheld because they are fighting to keep from being declared incompetent.
The usurping of veteran rights has not gone completely unnoticed in Congress. Last year an amendment was offered in the Senate to the 2013 National Defense Authorization Act (NDAA) to stop the VA from arbitrarily adding veterans to the NICS list. It was opposed by the White House and failed to pass. On March 14, 2013, North Carolina Senator Richard Burr introduced Senate Bill 572 (Veterans Second Amendment Protection Act) to protect the constitutional rights of veterans. The bill to amend Title 38 USC states, “In any case arising out of the administration by the Secretary of laws and benefits under this title, a person who is mentally incapacitated, deemed mentally incompetent, or experiencing an extended loss of consciousness shall not be considered adjudicated as a mental defective under subsection (d)(4) or (g)(4) of section 922 of title 18 without the order or finding of a judge, magistrate, or other judicial authority of competent jurisdiction that such person is a danger to himself or herself or others.” All members of Congress should be urged to support Senate Bill 572.
In the meantime, any veterans with more information or who needs help should contact www.usjf.net or Michael Connelly at [email protected]
Michael Connelly is a U.S. Army veteran, Director USJF, published author, freelance writer, and instructor of Constitutional law. Katharine Russ contributed to this article. Russ is an investigative reporter. She is a regular contributor to CityWatch and to the North Valley Reporter.