January 14, 2002
From: Philip E. Cushman
Veterans for Due Process, Inc.
P.O. Box 68237
Portland, Oregon 97268
Phone: 503.659.9912
Email: VetDueProc@aol.com
To: Board of Education
Portland Public Schools
Board Auditorium
Blanchard Education Service Center
501 N. Dixon
Portland, OR 97227
Subject: Legal Duty of Full Disclosure Concerning Military Enlistment CONTRACTS
My name is Philip Cushman, and I am the Executive Director of Veterans for Due Process, Inc. (VDP), an Oregon based non-profit corporation which for 20 years has attempted, largely in vain, to compel the United States Veterans Administration (VA) to obey the law, and treat America's military injured defenders justly, honorably, fairly and in accordance with the law. I am also a patriotic ex-Marine veteran injured in Vietnam . In order to facilitate your understanding of VDP's concerns herein, I have attached [see: Attachment "A"] a copy of an October 17, 2000, joint letter from VDP and The National Veterans Organization (NVO) - - - see: www.nvo.org - - - to each of the presidential candidates, which includes documentation concerning the Executive Branch Office of Management and Budget (OMB) having told the VA to hide the "grim picture of service to veterans' from Congress and public."
I appreciate the opportunity to present vital information to this Board, concerning the proposed reintroduction of military recruiters into our High Schools, as required by the Education Bill recently signed into law by President Bush, which links continuing receipt of federal school funding dollars, to high school recruiting. While VDP believes that military service is a duty of citizenship, we also believe that Uncle Sam has a CONTRACTUAL DUTY of FULL DISCLOSURE, to warn our America 's patriotic youngsters during the recruiting/enlistment CONTRACT process, concerning the now very well hidden potential consequences of being injured in the military. It that regard, please consider the following questions as they relate to Oregon's patriotic school students contemplating military service:
1. Do they have a right to know that if they are injured on a foreign battlefield defending America and her Constitution, that for the rest of their lives once relegated into the Veterans Administration system, they can be subjected to illegal and systemic VA benefits denial POLICIES which negate Due Process of Law, and be thereby denied the protections of that same Constitution, and their meritorious claims denied, concerning injuries which they suffer in the military?
2. Do patriotic Oregon high school students have a right to know that if they are injured in the military, defending our American System of Justice (which includes access to Judicial Branch courts of law and the right to hire legal counsel) and Rule of Law, that they will ultimately be subjected to a Veterans Administration system under which they will be denied the protections of that same system for the rest of their lives, concerning the very military injuries which they suffered defending it. Should they be told that a federal law has closed every judicial branch/Article III/U.S. District Court in America (see: 38 USC 511) to veterans concerning VA decisions which are wrongful or illegal, and that another federal law (see: 38 USC 5904, 5905) PROHIBITS military injured veterans from having the right and freedom to spend THEIR OWN MONEY to hire attorneys to protect their legal rights concerning VA Regional Offices which routinely operate on the basis of budgetary driven illegal and systemic benefits denial POLICIES, and which offices routinely ignore the Rule of Law and subvert justice.
3. Do Oregon's high school students and all others contemplating military service, have a right to know that if they are injured in the military, that they, in the words of United States Senator Ron Wyden, who has been outspoken about this mockery of justice for decades, will be "relegated to a legal no man's land ." Wyden has also emphasized that the ongoing lack of meaningful rights for veterans, is a "mockery of justice," and an "outrageous denial of fundamental rights."
4. Do Oregon's youngsters have a right to know that if they are injured in the military defending America, and are later wrongfully and/or illegally denied VA disability compensation or continuing VA medical care treating war injuries, and accordingly file suit against Uncle Sam, that he will argue in court that such " VA BENEFITS INVOLVE NO AGREEMENT OF THE PARTIES ", therefore such injured vets have no legal, enforceable or contractual right to such benefits. See: Levy v. Brown , U.S. Court of Veterans Appeals, No. 92-1174. Significantly, Uncle Sam's goal in the recruiting process, is thereby revealed: Do Not Discuss, and Do Not Make Any AGREEMENTS concerning the long term legal status of military injuries.
5. Do unsuspecting high school students have a right to know that if they are injured in the military defending America, that they will ultimately be subjected to a VA system whose managers are often primarily driven not by compliance with the law nor the goal of fair, just and lawful treatment of military injured veterans, but rather by the lure of cash bonuses and promotions (see: 5 USC 3131) for themselves, which are tied directly to their achieving VA's "cost efficiency" and "productivity" goals? The recent cases revealed by ABC News 20-20 producer Dean Irwin, of VA attorneys sent to federal prison for destroying and altering veterans records in order to deny and/or delay their claims, well illustrates this sad reality. Incredibly, when asked "WHY?" by the sentencing U.S. District Court for the District of Columbia , the VA attorneys indicated their belief that such conduct might result in their receiving even bigger cash bonuses. Copies of ABC News 20-20 "Fighting for Justice" (aired June 2, 2000) videotape and TRANSCRIPT available. In a closed/above the law system such as the VA, the law often cannot compete with the lure of cash bonuses, especially when systemic illegal benefits denial POLICIES routinely negate the law.
6. Do patriotic high school students in Oregon, have a right to know that the federal government has for decades regarded service-connected disability compensation and medical care as being nothing more than "GRATUITIES" (see: Lynch v. United States, 292 U.S. 571) and unearned gifts, which confer no legal rights to gratuity recipients? Do they have a right to know that continuing VA medical care treating military injuries, and often related service-connected disability compensation, are considered by the government to be nothing but SOCIAL WELFARE instead of legal entitlements - - - " {see attached [Attachment "B"] Washington Post newspaper article dated May 6, 1992, entitled: "Social Welfare Programs", which also contains a graph revealing 26 years of VA flat line budget control (in the face of an average 5.5 fold increase in federal outlays) facilitated by VA's systemic illegal POLICIES which negate the Rule of Law and the US Constitution. Whereas other similar systemic illegal governmental benefits denial POLICIES were judicially corrected in other federal agencies in recent years [see: Bowen v. City of New York, 476 US 467 and Sorenson v. Mink & Apfel, Oregon CV-94-00874 (9th Circuit, Feb 13, 2001)], such illegal POLICIES, criminal conduct, Constitutional torts, etc., thrive at the VA because military injured veterans have been effectively denied the right to legal counsel concerning VA Regional Office claims ever since the Civil War, and U.S. District Court have been closed to them since ever since the 1933 "Economy Act" became law.
7. Do Oregon's patriotic youngsters contemplating military service, have a right to know the truth about courageous attorneys throughout America , denouncing the above the law VA system at issue herein? Note the following examples:
a. Attorneys Joseph Koltz and David Mirhoseini in a November 3, 1997, letter [see: Attachment "C"] to U.S. District Court Judge Barbara Crabb, denounced what they termed: "government sponsored criminal activity" and urging the court to call for a special grand jury to investigate.
b. In an article [see: Attachment "D"] entitled: "Veteran's Benefit Cases Minefield" dated June 1998, which appeared in The Federal Lawyer, Vol. 45, No 5, attention was focused on Des Moines, Iowa attorney Thomas W. Andrews, who called the entire veterans benefits system " corrupt and corrupting " and indicated that he would "not again accept another veteran's case. Never. Ever." He therein emphasized the following:
"I have taken one case to the Court of Veterans
Appeals [the Article 1 "court" with non-life tenured
(beholden) judges, known as the "court of
veterans Remands]. Six years later --- after
remand after remand after remand --- the case
still languishes through the institutional
arrogance of a system that holds no
respect for the law ."
Note: the ABC News 20-20 piece cited herein, revealed that ABC News conducted its own search into the CAVC "court," which revealed that out of 14,000 cases heard since 1989, that "only 18 were decided unequivocally in favor of the veteran." Special court, special justice - - how else can illegal systemic POLICIES which negate Due Process of Law, survive!
c. In a letter [see: Attachment "E"] dated July 26, 1999, from Boulder , Colorado attorney Sean Kendall, he indicates the following:
"The VA has one of the highest loss rates of any
government on appeal. This is because the
agency is repeatedly unable to follow the
law . . . The VA has no interest in granting your
claim; they will use every regulations, delay and
tactic to avoid paying. This is an agency that
regularly ignores the law and violates due
process in order to grant as few claims
as possible ."
8. Do patriotic Oregon high school students and other contemplating military service, have a right to know that in order to perpetuate its illegal benefits denial policies and contempt for the law, that the VA during 1986, "BLACKMAILED" into submission, the national veterans organizations which historically had been the watchdogs of veterans legal rights, by threatening those organizations financial survival. See [Attachment "F"] Wall Street Journal, Monday, July 14, 1986: "House Showdown Looms on Bill Letting Veterans Appeal Benefit Rulings in Court" and San Jose Mercury, July 23, 1986: "VA, buddies close ranks against vets"}. The VA thereby warned the vets organizations that if it was subjected to judicial accountability, that it might have to "curtail" the free office space, telephone service, long distance, postage, office furniture, etc., provided by VA in federal facilities on a DISCRETIONARY basis, under authority of 38 USC 5902(a)(2), also known as the VA "blackmail and intimidation statute."
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In that regard, please note in attachment "A," the newspaper article (and billboard photograph) entitled "Veterans' Gripe is Loud and Clear", which appeared in the Washington Post newspaper on August 3, 2000. The BILLBOARD which now appears in many states, tells the story, and our trusting and patriotic Oregon youngsters have a right to know the truth which we reveal today to this Board. This Board should also be aware that concerning this serious problem, the military has asserted to the undersigned during a telephone conversation to the Pentagon, that it simply does not keep track of what happens to military injured patriots AFTER they are discharged back into civilian life and relegated into the care of the Veterans Administration. The point is that the military should care, and be at the forefront of making certain that those injured in the military defending America, do not have their sacrifice and injuries defiled by another federal department which consistently refuses to obey the Rule of Law in order to comply with often draconian budgetary constraints. At a minimum, the military has a duty of full disclosure which would WARN uninformed youngsters with whom it enters enlistment CONTRACTS, thereby enabling them to make certain that they have a legal, enforceable and contractual AGREEMENT/meeting of the minds with Uncle Sam, concerning their long term legal rights concerning injuries suffered in the military. Significantly, America now requires TRUTH IN ADVERTISING, as evidenced by the WARNING on tobacco products. Similarly, America requires TRUTH IN LENDING, as evidenced by loan contracts which require disclosure of the true annual percentage rate of interest. VDP asserts that there should also be TRUTH IN RECRUITING which requires the military to WARN unsuspecting young Americans concerning the ongoing VA ambush which potentially awaits them, should they be injured while honorably and patriotically defending America .
As concerns the recruiting dilemma now before this Board, recent television news accounts reveal concerned Portland military recruiters, complaining about the low number of military enlistment "CONTRACTS" (their term) being written. What the United States government continues to ignore in its national military recruiting program, is that all contracts require FULL DISCLOSURE in order to be binding, and that military recruiters must divulge the TRUTH to all high school students which it attempts to recruit. Such patriotic young Americans should have a right to be warned about the present well concealed VA ambush which presently potentially awaits them, concerning any military injuries which they might suffer while honorably and patriotically defending America and her Constitution.
Uncle Sam is now determined throughout the recruiting process, to avoid any and all discussion concerning the long term consequences/legal rights concerning any injuries suffered in the military. Significantly, Uncle Sam, by his purposeful silence, thereby permits such youngsters, their parents and other loved ones, to reasonably, but erroneously, assume without question, that they will have legal, enforceable and contractual rights to continuing government paid medical care treating military injuries, and to disability compensation concerning injuries suffered in the military. The fact of the matter is that after military service, such veterans will be placed totally at the mercy of a budgetary driven Veterans Administration Regional Office system whose managers are often primarily driven not by the law, nor by the interest of justice and fairness to America's military injured defenders, but rather by the lure of cash bonuses and promotions for themselves, which are tied directly (see: 5 USC 3131: Senior Executive Service {SES} system) to compliance with often severe budgetary constraints, and which bonuses are a part of existing federal incentive systems which can negate the law. Only in such an environment can systemic illegal POLICIES which negate Due Process of Law, thrive.
As explained herein, for many decades the VA system has primarily been a mere appearance of legitimacy and a paper charade which routinely refuses to obey the Rule of Law, routinely denies meritorious claims for medical care and/or disability compensation concerning military injuries, and routinely engages in SYSTEMIC illegal budgetary driven benefits denial POLICIES, which easily negate the Due Process of Law guaranteed to every American by the United States Constitution.
Recent newspaper articles [see: Attachment "G"] entitled: "Veterans say they're not getting the promised benefits" (October 1, 2001) and "Veterans claims process a lengthy quagmire" (October 4, 2001) by Jennifer Sergent, which appeared in the Naples Daily News [Florida], focused attention on the futile VA "hamster wheel" reality of the VA's veterans claims "quagmire" process, but the outrageous wrong and national betrayal of patriotism and honor, continues year after year, war after war, in the name of fiscal economy, thereby defiling the honorable service and sacrifice of those patriots injured defending America.
In that regard, Veterans for Due Process, Inc., is prepared to provide to this Board upon request, hard evidence concerning the facts surrounding the following VA cases which illustrate VA's illegal POLICIES, contempt for the law, and potential threat to unsuspecting youngsters entering military service:
1. VA Regional Office destruction (pursuant to 1987 GAO Report which documented systemic VA illegal benefits denial POLICY) of a vital medical record (Social and Industrial Survey report) in the case of Army WW-II ex-POW combat veteran Fred Jossi, which enabled VA to deny his claim. Contact: Fred Jossi: 503.654.8986.
2. VA Regional Office destruction (pursuant to GAO Report documented systemic VA illegal POLICY) of certain records in the file of ex-Marine Vietnam combat veteran Laird Busse - - I have attached hereto [see: Attachment "H"] his recent 2 page letter to the President. Contact: Laird Busse: 928.203.0498.
3. VA Regional Office denial (pursuant to GAO Report documented systemic VA illegal POLICY) of the claim of severely wounded [hundreds of pieces of shrapnel throughout his body: portion of brain destroyed resulting in seizure disorder; eye destroyed; leg destroyed, etc.] Army Vietnam combat veteran Clyde O'Callaghan, whose claim for service-connected disability for "shell fragment" wounds caused by VA mortar in Vietnam, to his back and penis, was denied for the following written reason:
"The claim for service connection for shell
fragment wounds of the back and penis is not
well grounded because there is . . . no medical
or other evidence which links the disability to
service . For this reason, we need . . . medical or
other evidence that the disability may be related
to military service."
Contact: Clyde O'Callaghan: 318.649.0600.
4. VA Regional Office forging (pursuant to GAO Report documented systemic VA illegal POLICY) of probative medical records in the case of ex-Marine Vietnam combat veteran Philip Cushman. Contact: attorney Gordon P. Erspamer, Morrison & Foerster: 925.295.3300.
As previously noted, unlike other Americans with claims against other agencies of our government (such as the similar Social Security Disability system), military injured veterans in the VA system, are PROHIBITED by federal law from having what should be their right and freedom to spend THEIR OWN MONEY to hire attorneys to protect their legal rights before VA Regional Offices whose cash bonus and promotion driven managers often routinely comply with illegal benefits denial POLICIES by simply denying meritorious claims without regard to law, facts, established practices and procedures, etc. Additionally as noted above, America's Judicial Branch/Article III (Constitution)/U.S. District Courts, are closed to such injured veterans, who during 1988, were relegated to a non-judicial branch "special" court, with non-life tenured beholden "judges," which ignores documented continuous VA contempt for the Rule of Law, as well as its systemic illegal benefits denial POLICIES, in deference to misguided Public Policy concerning veterans. Arguably more shocking than the fact that America's injured military defenders are often relegated to VA tyranny, is the startling fact that the VA "legal no-man's land" omnipotence herein revealed, confirms that our government has herein found a way around the US Constitution itself, under the legal fiction known as "Sovereign Immunity", notwithstanding the fact that the Constitution was created by "We The People" primarily in order to LIMIT the power of the government.
Significantly, on November 10, 1982, VDP, with the vital help of then U.S. Senator Gary Hart, then U.S. Congressman Tom Daschle (now US Senate Majority Leader), then U.S. Representative Ron Wyden (now US Senator), then law school Dean Fred Davis, University of Dayton School of Law, etc., VDP organized a meeting in the United States Capitol, of all of the leaders of the Vietnam veterans organizations throughout America, calling the resultant group: the Vietnam Veterans Organizations United (VVOU). At that historic meeting, the delegates adopted a RESOLUTION [see: Attachment "I"] whereby we called upon the Congress and the President, to restore our right to Due Process of Law, by providing for Judicial Review of wrongful and/or illegal benefit denials, in U.S. District Courts; and repeal the limitation on attorneys fees which effectively denies veterans the right to counsel. This historic document and undertaking, was ignored by the government, and the American people were kept in the dark, in order that VA's systemic illegal benefits denial POLICIES could continue uninterrupted.
In summary, as concerns the soon to be revived military recruiting program in the Portland Public Schools, the United States Government, in the first instance, has a contractual DUTY of FULL DISCLOSURE as concerns the military enlistment "CONTRACTS" which it intends to create with Oregon's patriotic but often uninformed young patriots. Those youngsters contemplating military service, if warned, could insist on a written AGREEMENT with Uncle Sam, which creates a legal, enforceable and contractual right to continuing medical care and/or disability compensation, concerning any injuries which they might suffer in the military. The present policy constitutes Fraudulent Inducement in order to contractually bind. In the event that the federal government rejects the duty of Full Disclosure concerning military enlistment contracts with Oregon high school students being recruited, and continues to intentionally avoid the creation of any "agreement" concerning military injuries, VDP believes that consistent with this school boards duty to protect Oregon's High School students, that this Board must itself take affirmative steps to make certain that all students in the Portland Public Schools, are warned about the VA ambush which potentially awaits them, and which can devastate their lives, should they be injured in the military.
This Board should also be aware of the fact that VDP evidenced the VA abuse described herein, to the Oregon Legislature during 1985, resulting in the Oregon Attorneys Services Law [see: Oregon Revised Statutes (ORS) 406.410 - 406.430] which thereafter resulted in a U.S. Attorney General Opinion upholding the Oregon statute as NOT being in conflict with the VA statute which prevents veterans from hiring attorneys to protect their legal rights. Significantly, though still in the ORS, the federal VA and its buddies, in order to avoid the meaningful legal scrutiny into VA systemic illegal benefits denial POLICIES, neutralized the new Oregon law by not funding it. It should be apparent that Oregon 's economy has thereby been continuously injured by reason of the fact that the federal VA has thereby been able to continue to deny the meritorious claims of military injured Oregon veterans, thereby preventing the flow of millions of federal VA benefit dollars into Oregon .
Thank you, and VDP would be happy to answer any questions, either during this meeting, or in the future. Email contact most efficient - - - at: vetdueproc@aol.com. America MUST treat young patriotic Americans honorably, truthfully and lawfully.
Respectfully submitted
Philip E. Cushman
Executive Director
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Every School Board In America, Should Be Placed Similarly On Notice Concerning AMBUSH For Patriotic Youngsters, and Board's DUTY to protect students.
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----related newspaper article --------
Military poised to make pitch in high schools across Portland
The Oregonian
December 20, 2001
CLIFTON R. CHESTNUT
The military -- sensing victory Wednesday in President Bush's education plan -- is eager to recruit students at Portland high schools for the first time since 1995.
A tiny provision in the sweeping education package passed by Congress this week requires school districts to give military recruiters access to students. It also requires that schools furnish names, phone numbers and addresses of students to the military, if parents consent.
The military had been blocked from recruiting students in the 54,000-student Portland district since the school board barred them in 1995. The policy was enacted in response to the military's policy of restricting gays and lesbians from service if they disclose their sexual orientation.
It's unclear when recruiters would be allowed back in, but military officials said that recruiting would be low-key, won't interrupt learning and would offer students good information on scholarships and job training.
"If they open those doors up, I think they're going to be surprised," said Petty Officer Michael Dwyer, a district trainer in the Navy's recruiting district in Portland . "I don't think they're going to be finding military recruiters blanketing their schools and driving their kids crazy."
Lt. Col. David Gilbert of the Army's recruiting battalion in Portland , said recruiters would work with principals to decide appropriate times for meetings with students. Of the perception that recruiters intimidate students into signing up for the military, he said: "It's not that kind of business."
Portland is waiting for Bush to sign the bill and will comply fully with the law, said Jollee Faber Patterson, the district's lawyer.
Debbie Goldberg Menashe, chairwoman of the Portland School Board, described the military provision as an intrusion on local policy.
"I do interpret it as a sort of another way in which local control is somewhat minimized," she said.
Portland students, such as the school board members who sat on opposite sides of the issue, were divided on the idea of opening the doors to recruiters.
Amanda Kolch, 16, sought out Air Force recruiters at a Southeast Portland office and plans to enlist in 2002. The Franklin High senior plans a four-year stint and wants to use a military scholarship to pay for nursing school.
"I think standing up for gay and lesbian rights is a noteworthy cause," she said. "However, I do think by denying people the right to know more about resources is very unfair."
Megan Thorsfeldt, 17, also a Franklin student, said a reversal of Portland 's policy is tantamount to discrimination against gays. "I think the military does fine advertising without recruiting in schools," she said.
Local gay-rights advocates also see the military provision in Bush's plan as a interference in local politics.
"The solution for this is not for us to change our position locally, and not for this type of legislation," said Roey Thorpe, executive director of Basic Rights Oregon. "The solution is for the military to stop discriminating. Nothing's preventing students from signing up for military service."
You can reach Clifton R. Chestnut at 503-294-7669 or by e-mail at cliftonchestnut@news.oregonian.com.