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BIVEN TYPE ACTIONS AGAINST THE PRIVATE

 

Defendants Argue

that plaintiff Due Process claim fails because he contends that 38 USC § 511 violates the Due Process Clause of the Fifth Ammendment. Plaintiff has not identified any basis for his contention that section 511 violate substantial due process. To establish a substantive due process claim, a plaintiff must show a government deprivation of life, liberty, or property. To have a property interest, “ a person clearly must have more than an abstract need or desire.” Board of Regents v. Roth, 408 US 546,577 (1972). A plaintiff must “have a legitimate claim of entitlement to it.” Id. Substantive due process does not protect individuals from all actions that infringe liberty or deny property in violation of a law. Substantive due process is intended to prevent oppressive government action. Daniels v. Williams, 474 US 327, 331 (1986). In order to prevail on a substantive due process claim, a claimant must demonstrate that the challenged legislation lacked a reasonable basis. See Village of Euclid v. Ambler Realty Co., 272 US 365, 395 (1926). Under this standard, a statute will be sustained if any state of facts reasonably may be conceived to justify it. McGowan v. Maryland, 366 US 420, 426 (1961); Dandridge v. Williams, 397 US 471, 485 (1970) Assuming, Arguendo, that Plaintiff has a property interest in receipt of VA disability compensation, implementation of 38 USC§ 511 does not rise to the level of an arbitrary and unfair use of official power. See Howard v. Grinage. 82 F. 3d 1343, 1350 (6th Cir. 1996).

Defendant’s motions and arguments do not rest upon any affirmative defense. The two declarations provided by Defendants NPRC and VA does not support the arguments because Plaintiff petitioned Court alleging that the Defendants suppressed, altered, and destroyed federals documents; US Army, NPRC and VA acted in concert to cover-up medical and abusive disciplinary actions; NPRC and VA acted to cover-up records of his injuries to his KUB which the US Army did not properly treat; that the VA acted under pretext to arbitrarily discontinue benefits which he was entitle and receiving and that these actions were “TAKING” and BIVENS type violations to the rights which he had under 42 USC § 1983. Plaintiff petition the court to declare that 38 Title § 511 does not give the VA rights to violate his constitutionally protected rights.

Defendant VA has engaged in violations of the Plaintiff rights which he have under 38 Title § 511 parts 4.18, 4.13 in their acts of conspiracy to cover-up US Army abuses of process. Unemployability under § 4.18 was due to the plaintiff when he was released from the US Army unfit for further military service and not physically able to perform more than sedentary employment. He had lost the US Army career and was barred from re-enlisting; the VA rated him at 40%; he tried to work as a clerk and was hospitalized as a result so his disability and rated 100%; when he was released from the hospital he could not return to work and had to receive public welfare. The VA alter records and arbitrarily changed the etiology of plaintiff disability from 7007 hypertensive cardio vascular disease 7007 to essential hypertension 7101 in 1972 violating the rights which he had under § 4.13.

Plaintiff ask this court if 38 Title § 511 trump the rights which he has under the 5th and 13th Amendment. It is quiet clear that Plaintiff indicate that he suffered because the process did not protect the rights he has under 38 Title§ 511 part 4.13. He also complains that he lost the rights he had under AR 40-501 as well. The VA became a depository of Plaintiff US Army Medical records and when he filed for correction of his US Army records the ABCMR indicate that there were not sufficient records available. The Defendants make the argument indicating an opinion that plaintiff loses are but abstract needs or desires. Welfare recipients were entitled to notice and a hearing prior to the termination of public assistance payments (Goldberg v. Kelly [1970])

The Defendant arbitrarily terminated Plaintiff service connected benefits with pretext that Plaintiff was dead. The plaintiff notified VA he was still alive and VA did not restore his benefits for approximately five months. VA threaten plaintiff to take his benefits and made good the threat while other Federal Agents were harassing plaintiff. These particular actions by VA has been pleaded as Biven actions and TAKINGS which have traditionally been identified as violations of substantial due process because of the governments abuse of power, arbitrary and capricious actions. The defendants do not pro vide any affirmative defenses of these pleadings. Defendant VA used 38 Title § 511 acting in concert with US Army and NPRC to suppress, alter and destroy records which incriminated the US Army and show abuses of plaintiff protected rights. Then Defendant VA suppressed its own records showing injuries to plaintiff cardio-renal systems in 1968 and 1993 by first providing an erroneous hospital summary then creating a brill attempting to do away with the history of plaintiff VA medical treatments. See US District Court 5CV 0819 Complaint Federal questions 3 & 4.

VI. BIVENS ACTIONS:

Many of the Defendants acts of racial reprisal, harassment and Biven actions under color of law are matters of public records and have been brought in previous actions and either resolved, pent, or proven futile. Plaintiff has named those federal agents who have acted and noted the previous actions while still seeking copies of various federal documents which were prematurely destroyed. The IRS and EEOC actions deprived the Plaintiff of property without due process and were often dovetailed with the acts of the Defendant VA. 1990-1993 the IRS and EEOC acted to deprive Plaintiff of his rights by IRS harassing his clients “TAKING” properties [monies from bank accounts, placing liens on properties, making false claims] while Federal agents provided false information to Plaintiff Lawyer and clients and EEOC delayed the right to sue on his claim of religious discrimination. EEOC denied him the rights to sue during 1982-1990 which he otherwise had under 42 USC § 2000e-5; When he did come to Court Defendant VA created a brill 1993 while IRS attacked his clients business 1990-2001 threaten to destroy the files of Mamie A Horne 1993-1995 and placing a lien on Plaintiff real properties 2001 although Plaintiff owed no federal income taxes for any period. See US District Court 5CV 0819 complaint [1] ¶ 86-93.

The codified law against Biven type actions can be found in 42 USC § 1983. The US Supreme Court noted in the past that the addition of the phrase “and laws” to the text of what is now § 1983, although not without its ambiguities as to intended scope, was at least intended to make clear that that the guarantees contained in § 1 of the 1866 Act and § 16 of the Enforcement Act of 1870 were to be enforced against state actors through the express remedy for damages contained in § 1983. See Chapman, supra, at 441 U. S. 617 (footnote omitted) (Section 1 of the 1871 Act “served only to ensure that an individual had a cause of action for violations of the Constitution, which in the Fourteenth Amendment embodied and extended to all individuals as against state action the substantive protections afforded by § 1 of the 1866 Act”); id. at 441 U. S. 668 (WHITE, J., concurring in judgment). See also Maine v. Thiboutot, 448 U. S. 1, 448 U. S. 7 (1980) (“There is no express explanation offered for the insertion of the phrase and laws.’ On the one hand, a principal purpose of the added language was to ensure that federal legislation providing specifically for equality of rights would be brought within the ambit of the civil action authorized by that statute”) (internal quotations omitted). See Jett v. Dallas Independent School Dist. 491 US 701 (1989).

The federal causes of action against the individual defendants are based on allegations of conspiracy and intent to deprive plaintiff constitutional rights to be secure from the deprivation of life and liberty without due process of law. These federal causes of action against the individual defendants were alleged to arise under, inter alia, 42 U.S.C. §§ 1983 and 1985, and jurisdiction was asserted to exist under 28 U.S.C. § 1343. See Moor V. County of Alameda, 411 US 693 (1973).

Plaintiff indicated that he suffered various abusive actions by federal government agents: EEOC lack of enforcement and premature destruction of federal records 1982-1990; USDOJ refusal to prosecute complaints and providing false information to his attorney (1991); IRS false claims of delinquent taxes due (1986-7), threats to thread clients files(1993-95), and seizures of clients assets and placing liens upon his private properties while no taxes were due (2001) and the VA abuses of process by sending his family a notice of his death (2001) and discontinuing his benefits for approximately five months ( 2001) and two months (2003). VA abusive actions continued fraud in the process and refusing to correct CUE and or forward any timely filed COWC being filed October 27, 2003 and August 28, 2005. The US Army Board of Correction refusing to consider timely filed request [1968] to correct Plaintiff US Military records. These actions have been often dovetailed and used to cause the Plaintiff hardship and stress and follow a pattern of pervasive reprisal discrimination. See US District Court 5CV 0819 Doc. [10] ¶ 8a-11a.

Plaintiff engaged in anti-discrimination activities under 42 USC §§§ 1983; 1985 ; 2000e-5 which opposed illegal discrimination in employment and abuses by federal authorities. These activities were between 1982 and 1993. Plaintiff suffered numerous acts of reprisal in that he prevailed in his discrimination complaints 1984 but EEOC did not issue the right to sue in federal court until 1990 and when plaintiff filed de novo his attorney Leonard Flamm, Esq. withdrew from the case and subsequently indicated that he was informed by federal authorities that plaintiff was party to a scheme to defraud the US Government. The EEOC prematurely destroyed its file. See US District Court ED NY CV 91-0149 ILG Peavey v. Polytechnic University. Also see US District Court for the District of Columbia CV 88-2367 Horne v. Thronburgh.

IRS harassed plaintiff showing personal tax liabilities against plaintiff when in fact plaintiff owed no personal or business taxes. IRS also refused to refund plaintiff taxed due to him on his 1987 taxes. IRS instituted audits against a number of plaintiff business clients and FBI agents visited his business establishment inquiring and investigating one of his students Lisa Brown a practicing Muslim indicating she was seeking employment with the FBI when she had not requested plaintiff assistance as a reference or that she was seeking employment by FBI. Unknown individuals seeking his assistance to violate federal IRS statues targeted plaintiff. One individual indicated drug ties the other union violations. One individual had set up tapes of one of the interviews so plaintiff believed the individuals to be federal agents. One of plaintiff’s clients Tim Still Memorial Foundation operated an ALF and had their licenses pull by State agencies and plaintiff was confronted after filing for 501-C3 status and naming plaintiff as interim director. Plaintiff was forced to leave his business 1984 because of harassment by federal agencies (IRS and EEOC). 1990 IRS confiscated cash from J&R Air-conditioning and Heating Appliances, Inc. making claims on taxes, which were no longer collectible. IRS threatens to thread Mamie A Horne file if she continued to use Plaintiff as her tax consultant 1993. Plaintiff was forced to accept less suitable employment 1985-1989 and 1991 because of harassment of government agents. This employment causes the return of symptoms of CHF. See US District Court 5CV 0819 Complaint [1] ¶ 55-65 pg 10-12; Also see [1] ¶ 95-97.

Plaintiff was injured 1993 and examinations showed signs of swelling, heart enlargement per X-ray which VA diagnosed as LVH; and VA created a brill and act with NPRC to show the file as an original compensation claim. The NPRC indicate “a copy of a 1993 request by the VA for service verification was mailed to Plaintiff via first class US mail on August 3, 2005. NPRC responded to that 1993 request June 1, 1993, by sending a copy of the DD Form 214, Certificate of Release or Discharge from Active Duty. VA used the DD Form 214 to erroneously show the brill as an original claim. [8-2] ¶14.

Many of the Defendants acts of racial reprisal, harassment and Biven actions under color of law are matters of public records and have been brought in previous actions and either resolved, pent, or proven futile. Plaintiff has named those federal agents who have acted and noted the previous actions while still seeking copies of various federal documents, which were prematurely destroyed. The IRS and EEOC actions deprived the Plaintiff of property without due process and were often dovetailed with the acts of the Defendant VA. 1990-1993 the IRS and EEOC acted to deprive Plaintiff of his rights by IRS harassing his clients “TAKING” properties [monies from bank accounts, placing liens on properties, making false claims] while Federal agents provided false information to Plaintiff Lawyer and clients and EEOC delayed the right to sue on his claim of religious discrimination. EEOC denied him the rights to sue during 1982-1990 which he otherwise had under 42 USC § 2000e-5; When he did come to Court Defendant VA created a brill 1993 while IRS attacked his clients business 1990-2001 threaten to destroy the files of Mamie A Horne 1993-1995 and placing a lien on Plaintiff real properties 2001 although Plaintiff owed no federal income taxes for any period. See US District Court 5CV 0819 complaint [1] ¶ 86-93 also See US District Court 5CV 0819 Complaint [11] ¶ 10a

VA requested and denied additional claims August 30 1994 and March 30, 1995. Plaintiff complained to Senator Nunn and was re examined April 22, and August 3, 1995 by Dr. Littman and Dr. Lavin. Complaints were pain in chest down the left arm, shortness of breath, and a lost of strength. Plaintiff’s legs were very tired from walking a short distance. Objective test show 240/120; pulse 72; suspected enlarged liver; enlarged heart; mitral murmur; straightening of retinal arteries supporting Dr. Wilson diagnosed cardiomyophty. 05CV-819 [16] Tab-6. ERCB ¶ 15-20; 53-55. See US District Court 5CV 0819 Doc. [22] ¶ 13-20.

. Dr. Lavin completed three VA Form SF 507 for 1) Cardiovascular disease, 2) Hypertension, and 3) renal dysfunction to exclude poly-nephritis from his August 3, 1995 examinations coupled with VA 1993 C&P confirm symptoms of chronic CHF [severe fatigue, heart murmur, enlarge heart, enlarged liver, and hypertension of 240/120]. 05CV-819 [16] Tab-6. ERCB ¶ 20-23; See US District Court 5CV 0819 Doc [11] ¶ 11a; Doc [22] Ibid.

The VARO 317 CB Gibbard directed Dr. Knopha to substituted doctor Lavin’s report 9/5/95 suppressing plaintiff’s complains of pain down arms, and lost of strength. Dr. Knopha never examined plaintiff at VAMC MIA on 9/5/95 but VARO 317 used his report and VAMC MIA voided Dr. Lavin 8/3/1995. 05CV-819 [16] Tab-6. ERCB ¶ 24-25; See US District Court 5CV 0819 Doc [10] ¶ 20; Doc [22] Ibid.

VA 12-4-95 rating report contained CUE because it erroneously show VA Brooklyn Hospital 1968 inpatient as OPC while trying to show no existing VA hospital records for that period. VA ignored its own IVP taken while hospitalized in 1968 but used Jackson 1/31/67 limited IVP representations and stated IVP’s was normal. VA suppressed the actual VA Brooklyn Hospital 1968 records related to kidney injuries [discharge from penis 8 to 9 months prior to hospitalization, albumin +4 in urine; dysfunction in the right kidney; double pelvis; possible aberrant vessel on the right. Suggest renal arteriography on right to rule out or confirm aberrant vessel. 05CV-819 [16] Tab-6. ERCB ¶ 26-28 ; See US District Court 5CV 0819 Doc [27].

Evidence showing plaintiff’s complaints of pain in right flank, abnormal IVP, bruit in abdomen, pain in stomach and abdomen, elevated WBC, physical profiles; complaints of pains in right flank exist in US Army records which VA admit were in its possession; VA records show cramps in stomach and swollen neck 9/18/67; Chronological US Army records Sep 23 1966 back injury squeezed in over end page dated 2 Feb 67. ERCB TAB-1. See US District Court 5CV 0819 Doc [22] ¶ 51

Plaintiff continually suffer medical disabilities and stress and Defendant VA total disregard for the Plaintiff rights which he had believing that because he was a veteran that VA had preclusive rights over his treatment and could establish as fact what ever VA said was facts concerning his medical condition. Defendant VA had come before this court suppressing, altering, and destroying what even VA had called facts perpetrating a fraud upon the Court believing that in VA jurisdiction fraud was fact. Defendants request extensions taken out of time [14], which this Court liberally granted not with standing the Defendants past acts against the Plaintiff and his limited resources. Plaintiff was required to file various DA 149 applications with ABCMR to satisfy Defendants allegation that he had not exhausted administrative remedies and not withstanding the fact that he had filed these applications 1968 and the acts of NPRC and VA had been in concert with the US Army and made these application futile. See US District Court 5CV 0819 Doc. [16]; [17].

VA did not correct its CUE. VA records containing erroneous medical information showing that plaintiff did not suffer from any conditions, which would indicate US Army, violated the rights, which he had under AR 40-501 par. 3-23; 8-3. This caused VA to arbitrarily changed previous diagnosis and rating which the VA had previously made. VA had diagnosed 7007-hypertensive cardiovascular disease and rated it 30% through 1/26/68 then rated it 100%. In 1972 VA re-rated the condition zero and ignored all plaintiff complaints and the treatments he was having and changed the diagnosis to essential hypertension. See US District Court 5CV 0819 Doc. [16].

VA followed the same pattern in 1993 creation of the brill file. 1995 VA directed the VA doctors what to say and ignored all diagnosis of private physicians. VJE process allows this treatment of veterans because it knowingly allows rating specialist to commit fraud which is adopted as facts. The VA has ignored certified physicians reports and more material medical facts to come to predetermined ratings. 38 Title § 511 protect takings and arbitrary discontinuance of disability compensations, which may require long delays to restore them. These acts injure the application of constitutional equal protection. Ibid

CUE that are substantial and the veteran’s benefits are terminated based upon fraud, the veteran suffered a lost and a taking because he was entitled to the benefits, which were due and he did not receive them timely. Other veterans who did not so suffer enjoyed the rights to entitlements while the veteran suffering the error is deprived of his rights. Section 5109A provided (b) for the purpose of authorizing benefits, a [decision] on the grounds [sic] of clear and unmistakable error has the same effect as if the decision had been made on the date of the prior decision. Barbara Haines V. Gober, 10 Vet. App. 446 (1997). Cong ¶124.

This case like Barbara Haines V. Grober indicates the serious problem with the law regarding the abuses of VA power. Defendants does not deny any of the facts of this case and today US Army indicate that US Army medical records and other investigative reports in the multitude of court’s martial, CID investigations, congressional inquires, administrative boards does not exist. NPRC allege no investigative reports are in Plaintiff OMPF and falsely allege their destruction or probable existence continues with US Army. Plaintiff was held under false imprisonment until released from the US Army and false documents have been entered into his records to cover-up the violations of his constitutional rights. The VA act with NPRC and US Army to attempt to continue the fraud and cover-up and go to extremes to deny him benefits, harass him, deny the production for records not withstanding him medical conditions which should be free from stress. These are not mere CUE but intentional fraud under color of law.

The VA denied Haines the proper care and disability benefits based upon a CUE. The actions of the VA caused him a premature death but while he lived fighting the VA years passed and since he was totally disabled his family cared for him. He died before the VJE come to a decision and the wife inherit no remedy under the interpretations of 5109A by the courts. Haines premise upon the common law’s doctrine of remedy for injuries was denied.

The court did not deny Haines was injured by the VA CUE but took the position Barbara Haines was entitle to only his death benefits. Her claims were not entitlement to VA disability compensation benefits after her husband’s death. Actually she was not requesting a continuation of his VA compensation benefits but that accrued portion from the time of his entitlement to the point of his death. Her entitled to his death benefits was not an issue. His estate’s entitlement to those accrued and unpaid benefits was the issue.

The court reasoned that the benefits accrued under 5019A should not be paid as other accrued disability benefits does not supporting the reading of the law and clearly encourage violations of a group of veterans rights by encouraging CUES and fraud like those in Haines V. Grober. This case clearly demonstrates the progression from the CUE to fraud, which discriminates among similarly situated groups and treats some veterans differently than others who were similarly situated. The fact that these matter rest in the hands of those committing the CUE and unreasonable delays demonstrate a process that do not provide the veteran with a fair grievance process.

The law under 5109A as argued by Haines did not persuade the court because the court did not agree with her interpretation that the CUE claim may be made “at any time.” Second, she argues that claims based on remedial statutes typically survive the death of the party. See 38 U.S.C.A. § 5109A (West Supp. 1998), Pub. L. No. 105-111, § 1(a)(1), 111 Stat. 2271, 2271 (1997)

Her husband benefits had been terminated based upon a CUE and he had filed for BVA review and BVA did not decide the case one way or another but terminated it upon his death. His wife filed with the Veteran Court and they refused to hear it. In this case the VA act to deny various benefits, engaged in taking of benefits, engaged in suppression, altering, and destroying federal documents attempting to destroy the medical histories of Plaintiff. These acts within themselves are criminal but since they are by VA 38 Title § 511 tend to shield the violators of the Plaintiff rights which he has under equal protection and due process and 5 USC § 706G. It has been a long process of concerted acts and fraud. The Plaintiff filed the action before the VA seeking records and US Army for correction of its records as early as 1968.

Plaintiff provided this Court with these facts and statements of abuses requesting this courts orders and declaratory judgments against defendants violating Plaintiff rights under 5 USC § 552 indicating that Defendants NPRC and VA were acting to deny various US Army records. Plaintiff specifically provided this court the status of his 5 USC § 552 and the matters related to Defendants NPRC and VA concerted acts to cove-up US Army violations of his rights. Plaintiff moved this court for orders to the custodians of these federal documents to release these material federal records. See US District Court 5CV 0819 Doc. [10] ¶19-21.

Plaintiff moved the court for default judgment, and opposition to all of the Defendants requests for extensions to time, which was not taken in good faith. Plaintiff move the court for authenticated records enumerated in [10] and for a declaratory judgment pursuant to his constitutional rights which would fashion relief to make the plaintiff whole for the injuries which he suffered. See US District Court 5CV 0819 Doc. [11].

Defendants asking the Court for more time which the Court generously granted and did not provide any affirmative defenses necessary to refute any allegations but moved the Court based upon erroneous declarations of NPRC and VA regarding their roles as custodians of federal records and Defendants request Summary Judgment upon their erroneous declarations indicating that all Plaintiff 5 USC 552 request had been granted when in fact Defendants were still suppressing US Army medical documents and VA documents showing violations of Plaintiff rights which he had under AR 40-501. See US District Court 5CV 0819 Doc. [8]; [9].

The Plaintiff provided this Court material and substantial facts, which prove that the Defendants were not acting in good faith before this court responding to Defendants erroneous statements to this court and responded to Court Order [12] and Defendants memorandum, which was not based in evidence or law seeking to dismiss this case. See US District Court 5CV 0819 Doc [14].

Plaintiff has carried the burden forward not withstanding the fact that Defendants US Army, NPRC, and VA argue before this court that they are the official and legal custodians of the federal records which he seek. Defendants argue in one instant that plaintiff have been provide the records which he seek and Plaintiff present these records to ABCMR who argue that these records are not authentic and various records are not under the control of the US Army. Before this Court Defendants argue that the records have been provided to Plaintiff. Plaintiff has provided proof of his medical condition showing hospitalization and incapacitations during this Court process. See US District Court 5CV 0819 Doc [18].

Plaintiff suffer CHF with dysfunctional kidneys and ACS the Defendants VA record concur with a finding of CHF by VA rating 1995 although that rating avoided the rating of Chronic CHF by CB Gibbard of VARO 317 calling doctors telling them what to suppress in medical findings. Plaintiff submitted his notice of incapacity to this Court, which was entered 9/21/05, and Defendant VA act outside this court to change the facts, which it submitted to this court in its SOC dated 6/29/05. VA still had not released records from VA Hospital 1968 while declaring before this Court that Plaintiff has been provided all his 5 USC § 552 requests. Plaintiff again moved this Court for Summary judgment and injunctive relief. See US District Court 5CV 0819 Doc. [20-22].

The Defendants responding to the Court’s order to comply with 5 USC § 552 yield partial records sufficient to show abnormal IVP and kidney dysfunction with showing of hydronephrosis and dysfunction of the right kidney. Plaintiff resubmitted his DA 149 application which show US Army violations of his rights which exist under AR 40-501 and ABCMR indicate that he had not provided authentic records which US Army has control over. Plaintiff provided this Court documented records showing that Defendants provided this Court one statement and a contradictory statement to his Congressmen and that Defendants have not provided any US Army records of investigation supporting any disciplinary actions contained in his OMPF file. [37-38].

Plaintiff suffers long term chronic congestive heart failure. This is not simply a VA matter where the VA can say when the Plaintiff experience pain or suffering from his injuries. The certified medical establishment has long developed its diagnosis and prognosis of various medical diseases and conditions. The medical establishment and certified medical practitioners find the Plaintiff symptoms life threatening and he had a right to life, liberty and property under the USCA. The Plaintiff has entered various information and statements made by Defendants NPRC and VA showing that outside this Court they admit that all investigatory records has been destroyed and those that have been provided to Plaintiff has not been accepted in ABCMR proceeding. Since plaintiff started his ABCMR proceeding before any legal or timely destruction of these records the Defendants has acted in concert to suppress and destroy the records. The Defendant VA submitted its SOC dated 6/29/05 to this court and the Plaintiff filed for a timely review before BVA today the Defendant VA change material facts contained in this document and substitute various other rating decisions showing that Plaintiff show a zero rating for CHF and again essential hypertension is his diagnosis. Disregarding the overwhelming medical diagnosis and treatments for CHF and ACS the VA venture to again suppress its own records and commit fraud and hid behind 38 Title § 511. If in fact the VA find that plaintiff medical condition is zero under 7007 after its own rating of 60% for 13 years; hospitalization showing LVEF of 40% after a heart attack in 2005; hospitalization after heart attack 2006 showing ACS with heart beat of 33 and cast and protein in urine it is clear and unmistakable error. Defendants VA finding of facts in this matter show a total disregard for plaintiff rights which he have under 38 Title § 511 and clearly provide this court with evidence that Defendants VA believe that it can change certified medical reports, suppress and ignore more material medical facts, alter change and destroy medical documents to find its own facts and violate any right the veteran may have under the laws designed to provide the veteran with the proper care and treatment. The lies, misstatement and misrepresentations of facts are fraud. The moral turpitude of these actions produce an environment for the veteran where he is denied proper treatments and left homeless and in cases where his family carry the VA burden there is not VA statue to offer remedy. Haines V. Grober and this case indicate the clear violations to veteran’s 5th and 14th USCA rights because Defendant VA act arbitrarily and the system is so polluted that it should gall the conscience of any men that soldiers who had fought to protect the laws of liberty and justice can be openly denied their foremost protections.

These government agencies have provided what records they wish, deny the existence of those who the law requires to support their actions taken. They argue that what they say is fact. The plaintiff has cardio-renal disease they say essential hypertension. The medical facts are before this court. The plaintiff suffers cardio-renal injury that has deteriorated to Cardio-renal and Cardio-vascular diseases and chronic CHF with bouts of acute MI and ACS requiring hospitalization. Today the VA provides ratings that Plaintiff hypertension is rated 60% and his heart condition is zero as of 4/17/07 and 30% as of 4/22/08 rating because he was cured by a hospital admission 8/22/06 when he was found to be asymptomatic after 4 days of hospitalization. The VARO has issued three different ratings [two upon the same material medical records] and denied timely filed COWC to the BVA for review. See request to enter document filed with US District Court Clerk August 5, 2008.

Defendant VA submitted SOC dated 6/29/05 to this court showing that Plaintiff filed his claim April 10, 2003. Defendant VA show that it did not release documents which were in VA possession and requested by Plaintiff March 3, 2003 until January 18, 2006. These medical records were related to known injuries to plaintiff KUB that the US Army and VA suppressed. This matter has been over five years and the VA has refused to docket any timely filed COWC. Plaintiff has been hospitalized for two serious heart attacks [ie one with kidney failure, sepsis, pleurisy and pneumonia 2005; ACS and bradycardia or 33 bpm in 2006]. Plaintiff’s VA claims has not reached the BVA and VJE require BVA review before he can come to the Point where Haines had reached. VA singled out the plaintiff and act against him from the beginning.

Defendants acknowledge Substantive due process is intended to prevent oppressive government action in their arguments. Under this standard, a statute will be sustained if any state of facts reasonably may be conceived to justify it. They does not argue the plaintiff property rights but Assume, Arguendo, that Plaintiff has a property interest in receipt of VA disability compensation, implementation of 38 USC§ 511 does not rise to the level of an arbitrary and unfair use of official power. They do not provide affirmative defense against the facts of this case:

VA MIS 136/ file during Plaintiff’s 1968 VA Hospitalization respond to US congressional interest in treatments provided by VA Hospital 1968; VA EO 1993, and VA MIA 1993 bear the same MIS file numbers. VA continually suppressed all medical information related to injuries to plaintiff KUB and arbitrarily changed etiology from 7007 to 7101 in 1972. VA was named as the custodian for plaintiff US Army records after discharge August 5, 1967. VA intent to suppress the IVP taken by VA Brooklyn Hospital 1968 is clear by the use of Dr. Jackson 1/31/67 report showing IVP normal in the 12-4-95 decision and omitting it own test which show more material damage to plaintiff KUB.

VA “TAKING” plaintiff entitled benefits for seven months and subjecting plaintiff to personal injury and loses. VA refuse to docket various timely filed COWC which contain CUE showing the VA acts of fraud, alteration of federal documents, and deliberate misrepresentations attempting to continue cover-up evidence of AR 40-501 violations subjecting plaintiff to malpractice and further injury. VA provided false and erroneous information to this court alleging that plaintiff had not exhausted administrative remedies and that VA had provided all plaintiff FOIA request. See US District Court 5CV 0819 Doc. [11] ¶1.

The sole question is whether there has been a taking of property without that procedural due process that is required by the Fourteenth Amendment. We have dealt over and over again with the question of what constitutes “the right to be heard” (Schroeder v. New York, 371 U. S. 208, 371 U. S. 212) within the meaning of procedural due process. See Mullane v. Central Hanover Trust Co., 339 U. S. 306, 339 U. S. 314. In the latter case, we said that the right to be heard. See Sniadach V. Family Finance Corp 395 US 337 (1969).

Plaintiff property rights and rights to liberty as a soldier were violated by illegal actions. US Army regulations were not applied to protect the plaintiff. The abusive process has been documents and those federal documents inheriting accounts of plaintiff property rights, abuses of official discretions, violations of US Army regulations should have been preserved in federal investigative documents as required by US Army regulations. The plaintiff OMPF contained documents showing evidence of summary court martial 1/23/67; certificate of unsuitability 7 February 67; DD 214 with 3B code restricting re-enlistment; Special Court Martial 6/16/67; Special Court Martial 7/22/67. See US District Court 5CV 0819 Complaint [1] ¶ 23, 28, 32, 40-43, 64.

Defendants VA and NPRC are named by NRA as agents authorized to retain the US Army physical records. US Army records show trauma from being struck by the automobile. The US Army records show that Plaintiff was beyond the standards of retention and Certificate of unsuitability was placed in his 201 file [OMPF]. VA followed the practice of suppressing material and critical medical evidence from the US Army files while citing less critical medical evidence; suppressing best evidence of trauma, and injury to plaintiff KUB evident by abnormal IVP and protein in urine; acting in concert with NPRC to establish brill in 1993 to substitute as an original claim while suppressing the claim established in 1967;

2001 VA arbitrarily discontinued plaintiff’s entitled disability benefits under pretext that VA received a notice of his death forcing plaintiff to attempted employment beyond his physical capacity. VA denied plaintiff benefits for five months. VA threatened discontinuance of plaintiff VA benefits 2002 erroneously reporting US Postal Service indicated his brother’s address was not plaintiff’s address and discontinuing plaintiff’s total VA benefits May 1, 2003 alleging VA was collecting overpayment. During this period of TAKING plaintiff suffered injuries to his groin which typify groin pain from accident while in the US Army 1966 resulting from 9/17/66 accident and kicked in the groin during April 4, 1967 attack. See VARO 317/243C Cong ¶¶ 72-74.

VA believes that it has legal authority to start and stopped benefits at will and uses any ruse to cover up abuses of process. See ¶ 10 herein Exhibit 10 La Rue 8/31/03 two pages; Exhibit 11 CB Gibbard 4 23 03 VA 243C three pages; Exhibits 17 & 18 COWC 10/27/03 four pages; COWC 8-28-05. Cong ¶ 75.

VA stopped plaintiff’s compensation for two months alleging overpayment. He requested a hardship wavier. VA denied the request for wavier and again “took” two month benefits May 1, 2003-July 1.2003. VA took all the money at once disregarding plaintiff’s medical condition [60% 7007 with CHF, 10% 5295 back, additional disabilities un-rated injuries KUB and groin injury with Hydrocele]. Cong ¶ 76.

The regulations say that to “defeat the purpose of the subchapter” is to “deprive a person of income required for ordinary and necessary living expenses.” § 404.508(a). Those expenses are defined to include, among other things, food, rent, and medical bills. §§ 404.508(a)(1) and (2). Recoupment is “against equity and good conscience” when the recipient is thus deprived. Califano V. Yamas 442 US 682 (1979).

VA acts knowingly violated plaintiff rights which he had under 38 Title § 511 as he attempt to get information regarding the TAKING and made FOIA requests to VA Hosp Brooklyn 1968 March 3, 2003. The information was necessary to complete BVA appeals, which he believed were pending. Plaintiff reported what he believed to be serious violations of his constitutional rights to the US Congress. These reports are based upon serious abuses of Federal regulations, which govern the conduct of soldiers in the field [from the General Staff to the private on the line]; federal employees including those VA rate fixers. These individuals are not endowed with Czar Status even though they are sometimes called by such names. The VA has attempted to hide acts of fraud, and conspiracy behind 38 Title §511. Cong ¶ 78.

Defendant VA does not refute the Plaintiff’s allegations that he was entitled to the benefits; they were not paid when due [March 1, 2001 through July 26, 2001 and May 1, 2003 through June 30, 2003]. VA allegations that Plaintiff was dead had no credible basis. VA did not immediately restore Plaintiff benefits when VA learned Plaintiff was not dead. Plaintiff indicates that he was forced to engage in employment actives described as medically unsuitable while being deprived of benefits. The unsuitable employment activities aggravated what he believed was a groin pull, which developed over the course of time into a grotesque hydrocele.

Plaintiff had two actions against VA. One was for the abuse of process and the other was for increase injuries, which were aggravated by VA improper care and acts in concert, which caused aggravated injury to his groin which developed into a grotesque protrusion diagnosed as a hydrocele and hernia. Plaintiff filed FOIA request for records from VAH Brooklyn Hospital and NPRC to prove that VA abusive acts were a continuation of VA violations which had been in concert with US Army and NPRC. VA attempted to destroy medical records. CB Gibbard 4/23/2003 notice required new material medical evidence regarding the 12-2-95 to support Plaintiff claim of CUE. US Army and VA IVP were suppressed. The records of injury to his KUB were denied. VAH Brooklyn 1968 VA summaries continued to claim that all IVP were normal but refused VA FOIA requests for the entire hospital records. Cong ¶ 79.

Plaintiff service connection pursuant to 38 Title § 511 was buttressed by § 1151 because of the VA hospital medical treatment in 1968 VA suppressed material findings of abnormal IVP and injuries to KUB which indicated persistent non-social infections. This suppression hindered Plaintiff from bring his case against the US Army The US Army limited their indications to a double collecting system which again they labeled normal. VA Hospital Brooklyn IVP 1968 was within six months of Plaintiff discharge from the US Army. This examination and findings support the service connection status of the injuries. More important the VA IVP indicate more abnormalities than the US Army and those abnormalities most probably existed when the US Army IVP’s were nephrosis in both kidneys, narrowing at the pelvo-urethral junction on right side and the possibility of an aberrant vessel cannot be excluded. There is double pelvis and proximal urether on the left uniting about 3 cm below the pelvo-urethral junction.

 

Udall v. Tallman,

380 U. S. 1, 380 U. S. 16 (1965). The Board of Veterans’ Appeals expressly disclaimed authority to decide constitutional questions in Appeal of Sly, C-27 593 725 (May 10, 1972). See Johnson V. Robinson, 415 US 361 (1974).

The actions before this court related to the US Army procedural violations of the Plaintiff’s protected rights. The VA and NPRC have been named in their acts to act in concert to cover-up the US Army procedural violations. The injuries, which the plaintiff suffered, occurred in the US Army and the VA and NPRC have indicated that they are the custodian of the plaintiff personnel records to include his US Army medical records. In these capacities these defendants have been charged. They have acted in concert to intentionally suppress, alter, and destroy federal records to cover-up the evidence which show that the plaintiff was beyond retention in the US Army under AR 40-501. The VA used its position to carry out long term actions as custodian of plaintiff US Army medical records to tailor its own records to cover-up the facts that plaintiff suffered refractory hypertension with heart and kidney dysfunctions. The case is a mix case which names the VA as a participant in acts of conspiracy and fraud. Where there is a persistent pattern of police misconduct, as opposed to isolated incidents, injunctive relief is appropriate. Hague v. CIO, 307 U. S. 496. Pp. 416 U. S. 815-816.

The VA has also violated the plaintiff substantial due process rights because Defendant VA has engaged in Biven type actions and used it privileged position to deny payment of benefits when due to plaintiff; set up bogus filed attempting to destroy historical records of Plaintiff medical treatments by VA.

The court has jurisdiction under the mandamus statute, 28 U.S.C. § 1361, to granted relief to such petitioners. The court said that due process required that the Secretary provide an opportunity for an informal oral hearing before an independent decision maker prior to re-coupment. In so holding, the court relied on Goldberg v. Kelly, 397 U. S. 254 (1970), which determined that, under the Due Process Clause, a statutory right to welfare benefits could not be terminated without prior notice and opportunity for an evidential hearing. The court also held that the Constitution required that the initial overpayment notice be modified to inform the recipient more fully concerning re-coupment procedures. Although the court did not discuss respondents’ statutory claim, it granted judgment for respondents on both statutory and constitutional grounds and ordered injunctive relief for the class. Elliott v. Weinberger, 371 F.Supp. 90 (1974). Califano V. Yamas 442 US 682 (1979)

April 17, 2010 Posted by | Uncategorized, US Army injuries, veterans | , , , | Leave a comment

Struck by Automobile 9-17-66

Dispensary records show that IVP was ordered 20 september 66 and 27 september 66 before admitted to the Wormack Army Hospital on 28 September 66.

The VA indicates that it received these records and C&P examination indicate that US Army medical records show high blood pressures at 160/100 and ignore the higher pressures or 185/120 and 176/110 shown on the same page which they got the lower readings. The VA also ignore Dr. Wise 154/112 which was on 22 December after the adequate ambulatory period on anti-hypertensive medications.

Soldiers are welcome to note these two documents and tell me what do you think. I was airborne and gun-woHa do you think this covered my a?? when I was struck by an Automobile. If my normal blood pressure was 130/70 and never before discovered to be a diastolic greater than 80 before the accident do you think the high pressure reading the day of the accident was due to the accident or unexplained?

Now if there are a number of diagnosis and one included unexplained high blood pressure and the other high blood pressure due to trauma as a result of injuries sustained to the back from being struck by an automobile which one do the think would be correct. Which one do you think the US Army picked. Let me get a shout out from you veterans? What is the appropriate diagnosis?

November 11, 2008 Posted by | Government, veterans | | 4 Comments

US ARMY VIOLATIONS OF AR 40-501 PAR. 3.23

 

 

 

 

 

 

 

 

 

 

 

THIS soldier’s struggle is all about studying war no more or using every defence of God and Country for the preservation of self. How else can one come to self and deny that which he provides to any other? Let me hear what you talkers have to say about these observations. I have survived this ordeal to this point because I am more than a soldier at heart and in spirit. If I were just a grunt and bruit who take the battle to the enemy I would be lost and at best a killer without a cause.

 

EVIDENCE RE:   standard or physical fitness as described under AR 40-501:

1 Par. 3-23 Hypertensive Cardiovascular Disease and hypertensive vascular disease. The Causes of medical unfitness for further military service are–

a) diastolic pressure of over 110 mm of mercury following adequate period of oral therapy while on ambulatory status.

b) Any documented history of hypertension regardless of the pressure values if associated with heart disease or Gr III changes in fundi

I had a right to the Special Court-martial and Medical Evaluation Board [MEB] to present this evidence but was arbitrarily denied that right. I was also denied  hearing related to the 635-212 discharge. Capt. Michael J. Maloney’s allegations that accused elected the summary court-martial after being offered the AR-15 is plain error in the face of the facts that the election has not be substantiated in writing by the US Army; My primary medical officer entered the fact in my medical records I sought assistance to acquire MEB on 17 Jan 67 anticipating a Special Court-martial after refusing the Summary and that the officers of the summary court processed  635-212 discharge without affording me legal counsel or a hearing which would have been available under the special court-martial.  These actions violated the due process which I was entitled.

The following statement of facts was made in request for correction of military records Army Board for Correction of Military Records herein [ABCMR ] docket number ABCMR .

Documents attached as additional pages here.  These pages support facts that the solder has the right to protect and is responsible for his physical health and well being and should report any injuries which are persistent and improperly healed. AR 40-501 par 8-3 1996.

pages attached will support that Morris J. Peavey, Jr. the soldier was:

1___ in great physical condition when inducted in the US Army with bp of 130/80 and the normal presure was measured at 130/70 while hospitalized 1965.

2___passed the physical fitness test with a score of 499 out of a possible 500 with the highest score in his military unit graduating from basic training Ft. Dix NJ 1965.

3—was ranked Sp4-E4 assistant gunner of the 4.2 inch mortar and maintained a performance and conduct rating of excellent conduct and performance effrective December 16, 1966 when he was disqualified for airborne duties due to injuries received September 17, 1966.

4—had been struck by an automobile as a pedistrian on september 17, 1966 and recieved injuries to his lower torso.  Complained of back pains, headaches, and dizzeness and blood pressure found to be 185/120 9-20-66, discovered to have heart murmur, bruit in abdomen, abnormal wbcj, IVP show double collecting system.

5—was hospitalized 9-28-66 thru 10-4-66 and murmur confirmed, narrowing of arteries, high blood pressure, bruit confirmed, IVP show double collecting system, abnormal wbc.

6—was released from hospital with “3p” profile restrict duties to permanent limited duty 4 oct 66.

7—issued a second profile indicating code D “no streneous physical activities” and U no parachute jumping on 24 OCT 66.

8—received medical treatments and required frequent heat treatments, pain medications, and high blood pressure medications—went on 30 days convalesence leave 18 Nov 66 through 18 December 66.

9—examined the day after convalensce leave [19 Dec 1966] and blood pressure found 154/112 after 3 months after the accident and a reasonable period on anti-hypertensive medications and ambulary.  Dr. Wise notes “Compensation Case” 22 Dec 66 and order further tests to include orthopedic examination.

10–examined  23 Dec 1966 by Dr. Lafallet the orthopedist who jumped into his arms during the examination and indicated that he was fit for full duties and made the full duties manditory.  This was disregarding Dr. wise orders, observations, suggested diagnosis of cardio-renal disease.  Dr. Lafallet ordered discontinuance of medications.

11–Capt. Maloney the unit commander had ordered soldier duties as a paratrooper changed effective 16 Dec 66.  Capt. Maloney had rated the soldiers performance and conduct as excellent prior to Dr. Lafallet’s orders based upon his unorthodox examination.

12–Capt. Maloney order KP and policing duties [ 30 miles] across the post between 24 Dec 66 and 5 Jan 67.  These duties were assigned during a period while I was clearing the airborne unit, the Xmas holidays and facing cruel jokes from Airborne soldiers about my new leg status.

13–5 Jan 67 the dispensary refused all medication except asperins although I had been on anti-hypertensive meds since 28 september 66.  I suffered extreme head and back aches and dizzeness and memory lost at the time.  I was extremely angry and flusterated and went AWOL to seek proper medical treatments.

14–I remained AWOL from 5 Jan 67 through 16 Jan 67.

Comments are welcome on any aspect of the rights of the soldier to protect himself, his service, and memories after the wars are over.  This is a simple right which every one takes for granted therefore, it should not be a confusing issue for those who believe in acting as guardians of life.

November 3, 2008 Posted by | Government, inspiration | , | Leave a comment

Hello world!

     

This is my picture as an airborne trooper during the Vietnam era and reflect my sprit as the ultimate sentential. My accomplishments were at the top of the game. I had graduated from HS with the highest GPA in my class and Honored as the Salutatorian. The title of my address was FEEDING THE HUNGRY WORLD. This speech was in given 1963. Little did I know at the time I would become an economist.

My academic excellence was shown by an induction US Army score of 58 AFOT and physical fitness of 499 out of a possible 500 for the highest score in my graduating group. I completed Training Leadership School; understood US AR 40-501 and AR 78 UCMJ. I was a weapons expert with the 60MM recoilless rifle; 106MM recoilless rifle; 42inch Mortar; 45 Caliber Pistol; M-40 Grenade Launch and Sharpshooter with the M-14.

DUTIES and RANKS were E-1 upon induction July 24, 1964 and my highest rank was Sp4 E-4 permanent rank acquired May 20, 1966. I served as assistant gunner on the 4.2 inch Mortar at this rank. I served two tours in the Dominican Republic and escape the military struggles in the golden triangle of Vietnam. The closest I came to the jungle life was the monsoons tropical environment of Hispaniola. This was considered good duty and I served first as 118th Corp MP and the second tour as an infantry soldier in the 82 Airborne Division. I suffered from viral pneumonia and was returned to the United States October 2, 1965. I was returned as an infantry asst. gunner for a 4.2 inch mortar on the number 2 gun. In that position I was a member of HHQ 2-504 Infantry/ 82 Airborne Division of Fort Bragg, NC. My performance and conduct was always excellent/excellent through January 4, 1967.

MEDICAL INJURIES and DISABILITIES are evident from dispensary and US Army Hospital records. September 1965 through October 21, 1965 with Hospitalization in Womack Army Hospital [WAH] 10/3/65 through 10/18/65. 9/17/66 I was struck by an automobile. I received a blow to my lower torso. My blood pressure went to 185/120 Dr. Wise was my primary doctor and I suffered from high blood pressure when my pressure was normally 130/70; I suffered heart murmur; injuries to lower back; IVP show double collecting system; bruit in abdomen; complaints of pains in abdomen/groin dizziness, and fainting. Dr. Wise suggested cardio renal injury and treatments followed 7 days hosp, 30 days convalescence leave [November 18 to December 19, 1966] and repeated sick call with heat treatments, anti-hypertensive drugs, diuretics and pain killers.

Dr. Wise medical indications suggesting cardio-renal injury resulting from the car accident. I returned from convalesce leave December 19, 1966 and Dr. Wise continued to suspect cardio-renal injury and noted blood pressure of 154/112 and “Compensation Case.” He sent me for further orthopedic examination. 23 December 66 Dr. Lafallet examined my back by jumping into my arms and looking into my eyes. I was surprised by his tactics and examination. From his position in my arms he determined that I was fit for full duty and it was mandatory. He also had the nerves to say he was in my arm at the time of his examination and that all my medication should be discontinued. Capt. Maloney followed his instructions and ordered KP and other strenuous physical activities.

 The Pictures of the weapons which I was Master:

This copy my first rifle which was a very acurate weapon.  However,  my best ranking was  sharpshoter in basic training with the M-14.  It was soon replaced with the M-16 which was fully automatic and lighter.  Although I believe the M-16 was more irratic I fired expert with the m-16 which became my primary weapon.

This is a copy of the M-16 rifle.  We used 20 clip magizines and I found it a nuisance because any rapid fire caused the weapon to be ineffective because it would empty the clip in very short burst.  We begin to tape three magazines for more effective use of the weapon.

This was my first heavey weapon which I trained on in basic training as a heavey weapons specialist.  It fired fifty caliber tracer rounds to pin point the target before firing the cannon.  We fired from a position mounted on the jeep.  I used this weapon as a senntinal from a bridge position while in Dominician Republic.  I was expert with this weapon.

 

I trained on the 81mm mortar in Basic Training and was considered good scoring the second highest in my unit.  The weapon listed above use the same projectile principles and I was place on the number two gun in my Unit HQ HQ Company 2nd 504 infantry 82 airborne division Ft. Bragg.  Our gun was the most pretigeous in our battery because it was responsible for firing survey data which aligned all the guns in the battery and because it was the weapon that directed fire.  I was expert on the weapon and had the most direct hits in our battery. 

I served my units with distintction and honor.  I enlisted in the US Military and accepted the creed of the US Soldier and aggreed to face death before dishonor.

My highest rank was Sp4-E4 although my scores and training indicate that I could have qualified for greater rank and responsibility. I was not an admirals son and my family had prepared my mind to serve the country. In fact I have one brother who was drafted in the US Military and many cousins who served in the US Armed forces. They were US army, and Air force men. They went into harms way and served in Vietnam and came back to these United States with wounds and injuries which the US denied and scorned and walked away from leaving our family to shoulder the burdens of this gross neglect. I tell this story because of the prepondence of lies which lead us into illegal wars and the US Government disregard for the Veterans who have served this country. This story is based upon my personal experience and service as a grunt.

I also wore the sleeve of the US Military Police and learned many statues, Army regulations and codes and laws which I will share with you. These AR and various laws find their strength in the US Constitution and the rights of a person to protect himself. This extends from the persons to their families to communities and nations and the world community. It is not explicitly awarded to this country or this people but to us All it is not restricted protection of Christians over Muslim; White over Black or believers over non-believers in any thesis which a person wish to put forth.

My statements will begin with SAY YOU:

MY questions will begin with say what?

And my support for any position will be WHO RAH!

 

SAY YOU Greek Spartans [Alpha and Omega] and Roman Lampoons, Tartians–Titans or simple Barbarians have the rights to the killing arts look again and evaluate the power of killing and slaughter. What your bring to the world is a slaughter which no one else can possess–Say what?
YOU SAY a country ruled by laws and constitution. That your founding father was not a thief and honor rested upon his feet as it rest upon the bow of the boat that crossed the Potomac and all the proper things which he should have done but didn’t do and the covert lies an things which we learn to honor. Wake up and say something else to me—Say what?
Who are we just stupid grunts and what is this I hear about remedies–War to make peace–say what.
SAY YOU world citizens wish to comment–say what?

 

 

 

 

March 15, 2008 Posted by | Government, inspiration, Uncategorized, veterans | , , , , | 11 Comments