View Full Version : Canales' News Briefs, 04/27/2007 - "Gulli-Bull"

04-27-2007, 6:57 AM
Tony Canales' "News Briefs"
April 27, 2007

"...(g) It shall be unlawful for any person-....

(4) who has been adjudicated as a mental defective or who has been committed to a mental institution;....

(9) who has been convicted in any court of a misdemeanor crime of domestic violence, to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition which has been shipped or transported in interstate or foreign commerce..."

- Excerpts from Title 18, U.S.C., Chapter 44, Section 922 (g), the 1968 Gun Control Act (as amended) which would make it illegal for persons adjudicated as mentally defective from receiving or possessing firearms.

"...Section 3.353 Determination 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 affair, 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 Section 13.56 of this chapter, disbursement of benefits. Such determinations are final and binding on field stations for these purposes....

(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 relative to incompetency should be based upon all evidence of record and there should a consistent relationship between the percentage of disability, facts relating to commitment or hospitalization and the holding of incompetency.

(d) Presumption in favor of competency. Where reasonable doubt arises regarding a beneficiary's mental capacity to contract or to manage his or her own affairs, including the disbursement of funds without limitation, such doubt will be resolved in favor of competency (see Section 3.102 on reasonable doubt).

(e) Due process. Whenever it is proposes to make an incompetency determination, the beneficiary will be notified of the proposed action and of the right to a hearing as provided in Section 3.103....."

- Selected excerpts from 38 CFR 3.353 related to the requirements placed upon the Veteran's Administration when forced to determine whether a veteran is due monies related to a service-related event leading to an adjudication of mental illness.

To All,

It's amazing what's floating around the Blogosphere nowadays:

One of the more interesting canards currently being propagated on the Internet is related to the claim that honorable veterans who suffer Post Traumatic Stress Syndrome are somehow going to be "outed" to the U.S. Department of Justice as a prohibited person for the purposes of firearms ownership.

Don't you believe it.

For starters, a number of therapies exist (medication, group therapy, one-on-one counseling, and even a kind of "virtual reality" re-enactment procedure) that are designed to help all sufferers of PTSD deal with the disorder (Other types of victims of PTSD include accident victims, crime and sexual abuse victims, or even those exposed to such natural disasters such as tsunamis, earthquakes, and devastating storms). Given the relative success of these treatments over an otherwise serious malady, the subset of those most seriously afflicted with PTSD, who end up being adjudicated incompetent through due process, is proportionately small.

This means that a substantial number of individuals, not to mention veterans, should have no fear in obtaining a treatment simply because of the specious proposition that they will be denied one or more critical civil liberties by a system devoid of checks and balances. This is especially so with a disease like PTSD, where delay of treatment can lead to a dangerous downward spiral in the mental condition of the afflicted person.

As noted above, the Veterans Administration is required by law to go through a thorough process of review, acceptance of objective medical evidence, and an appeals process before cash benefits to veterans can be assigned to someone other than the veteran/beneficiary for those few who are being treated in a "confined-care" environment.

On the other hand, the law also requires that the VA recognize certain award status of the individual veteran as what amounts to prime facie evidence that an veteran had been subjected to those "stressors" known to the medical community to initiate PTSD. In other words, recipients of Combat Infantryman's Badges, Purple Hearts, Distinguished Service Crosses, Medal's of Honor, and a large number of other service medals automatically qualify, for benefits purposes, as having been subjected to PTSD-related causes.

In a sense, this part of the VA system has all the hallmarks of what amounts to the Federal Government's "workmen's compensation" system for those DOD employees adversely affected by their work environment. Individuals who were adversely affected mentally, so that they are disabled to some degree or the other, are supposed to be compensated much as they would if they had a debilitating limb injury or a chemical exposure. But recognition of partial disability for benefit purposes does not necessarily mean that an individual has been adjudicated mentally deficient to the point of being committed.

Of course, this does not mean that "The Bureaucracy" will not be inefficient at times with dealing with any particular individual. But any delays and denials of timely service and benefits are more related to the lack of efficacy of government-run insurance and health plans than it is indicative of a plot to deny individuals their civil rights.

In the past, such "inefficiencies" have included a one-time release during the Second Clinton term where a list of adjudicated veterans, their spouses and various dependents numbering some 88,898, were forwarded to Attorney General Janet Reno for "processing and inclusion" in the NICS system. It is the inclusion of individuals not adjudicated incompetent that has been the subject of much high-pressure lobbying by NRA staff since 1999. That additional restrictions and protocols as to how the Veterans Administration can adjudicate, for benefits purposes, an individual as incompetent were enacted in the 2004-2005 period may have been a result of that ongoing lobbying, among all the other groups involved.

But if the courts find an individual not capable of managing their own affairs and so mentally incapable of performing such everyday functions as paying bills, entering contracts, driving automobiles, or even being threatening to themselves or others, then it is perhaps common sense that they be not given opportunity to possess weapons such as firearms or sharp kitchen utensils.

It is hard to say why these Internet rumors, "urban legends", etcetera get started in the first place. It is clear in this case that such a declaration is without substance, and could actually cause more harm by scaring deserving veterans from obtaining the needed treatment that is due them for their honorable service to the country. Hopefully education and lobbying on the issue of post-traumatic stress syndrome and it's related treatments will out-pace this latest Internet boondoggle, before those afflicted choose the downward-spiraling path of treatment avoidance out of fear-mongering.

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Anthony Canales

Copyright (c)2007 Anthony Canales
All rights reserved.
(Posted with permission of author)