OFFE Strongly Opposes H.R. 2640
Constitutional Rights Null and Void for Veterans
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FOR IMMEDIATE RELEASE (21)
January 8, 2008
OFFE Strongly Opposes H.R. 2640
According to Operation Firing For Effect (OFFE), National Chairman, Gene Simes; “if President Bush signs H.R. 2640 (aka: ‘The Veterans Disarmament Act’) into law, former military personnel of this country and their families will indeed suffer in the long run”.
It is true that House Bill 2640 doesn’t directly mention veterans or military personnel in the text body. And there are no references to the Department of Veterans Affairs within the bill itself. However, passage of the bill will further open the door to accessing veteran’s personal (Department of Veterans Affairs) medical information to agencies outside the VA. The Department of Justice, FBI, ATF, Homeland Security, and many other law enforcement agencies are currently downloading information from the VA on veterans who ‘the VA’ has determined to be mentally incompetent and therefore at risk to buy or own a firearm. Yet, unbeknown to many, this practice has been going on for years.
According to a in-house Veterans Benefits Administration memo (VBA Fast Letter 00-44) [Below], agencies outside the Department of Veterans Affairs have been granted access to the personal medical and mental health information on thousands of veterans that fall into 1 of 7 categories defined by the ATF as ‘at risk’ to own a firearm.
Sponsors of the 2007 H.R. 2640, NICS improvement bill include Reps. John Dingell (the only current House member who voted against the Gun Control Act of 1968), Lamar Smith (R-TX) and Rick Boucher (D-VA.)--all of whom are longtime supporters of gun owners’ rights and sponsors of many pro-Second Amendment bills.
H.R.2640 has received the approval and endorsement of the National Rifle Association (NRA) and several high-profile veterans’ service organizations. A very polished NRA statement of endorsement can be found at this link:
http://www.nraila.org/Issues/Articles/Read.aspx?id=246&issue=018
Gene Simes and many OFFE supporters nationwide disagree strongly with the NRA statement and claim that the Veterans Benefits Administration (VBA) document [below] makes it very clear that the Department of Veterans Affairs has now become an active ‘arm of the law’. In the VBA Fast Letter dated June 2000, the VBA openly admits tens of thousands of veterans have had their personal mental health information transferred to NICS in the year 1999 alone. The document also substantiates the existence of a very open-door policy between the VA and federal law enforcement agencies when it comes to acquiring personal information for the purpose of gun control. The Department of Veterans Affairs (VA) has its own jurisdiction of laws and responsibilities, as specified by USC, Title 38. No where in USC Title 38 does it state that the Secretary of the Department of Veterans Affairs shall relinquish bulk medical information to another agency for the purpose of law enforcement or gun control. The VA has an ethical and moral responsibility to our veterans to protect their personal medical and mental health records from being used by anyone against them. The Department of Veterans Affairs must maintain a ‘sanctuary attitude’ and ‘non-adversarial posture’ if they expect a sick or ill veteran to trust in the VA in their time of need. If the veteran feels that by going to a VA for treatment might somehow adversely affect their Constitutional Rights to own a firearm, or put them on a nationwide database not directly related to the VA, they will avoid treatment. The current co-operation between the VA and NICS is very damning to the primary mission of the VA, to care for him whom bourn the battle... NICS infiltration of the VA database was a bad idea in 1999, and it is still a bad idea today. The Department of Veterans Affairs had no legitimate authority to give away, in their own words; “a load of data on incompetent veterans, surviving spouses, adult helpless children and dependent parents from information in the Benefits Delivery Network (BDN) and the Fiduciary Beneficiary System (FBS)”. If you, like me, are asking yourself what amount of ‘data’ would qualify as ‘a load’? I’m afraid I can’t tell you that. How many bits and bites of data can you put into a pickup truck?
H.R.2640 of 2007 only enhances the NICS process that was started in 1999. Over the past 10 years, all of our veterans (at one point or another) have had their personal and medical data lost, stolen or compromised directly/indirectly from VA computers and VBA databases. Data containing personal information on millions of veterans has already been compromised, and since you can’t un-ring a bell, the damage is already done. Many agencies at both federal and state levels have been downloading privileged personal information from the national VA database for several years now. The Internal Revenue Service and Social Security Administration have absorbed and utilize massive amounts of data taken from the VA patient database. The Department of Justice is merely the latest to take their turn at the well. The Veterans Administration is the nation’s largest healthcare delivery system and medical database. This single collection of patient information has proven to be extremely valuable to databases maintained by homeland security, law enforcement, pharmaceutical marketing, insurance companies, special interest, and certain target demographics. There have always been legal avenues for Judges and law enforcement to subpoena medical records from the VA on any particular veteran to determine an individual’s mental competence. There was never a legitimate reason for the VA to voluntarily release bulk private information on hundreds of thousands of veterans without due cause, or due process of law.
Some critics claim H.R. 2640 and the ‘VA connection’ have violated the Constitutional Protection of our nation’s veteran population as a whole, and question if civil liberties were being jeopardized as well. Some veterans question if Health Insurance Portability and Accountability Act (HIPAA) patient privacy protection guidelines were followed in accessing the initial 88,000+ personal medical records released in 1999 by the VA, or were the records all just sent over to NICS from the VA in a bundle of data, which is now being used to enforce gun laws and to build a nationwide database for law enforcement.
Gene Simes and the OFFE team are disappointed and baffled by the NRA’s blanket endorsement of a policy that uses personal medical and mental health information collected by the Department of Veterans Affairs for purposes other than the medical treatment of our veterans. It appears that the veterans have been betrayed once again by the very agencies and organizations created to serve and protect them. Chairman Simes points out that NICS stands for National Instant ‘CRIMINAL’ Background check, not National Instant Criminal and Mental Health Background Check. The current NICS policy has boldly expanded its jurisdiction by definition to include and incorporate the term ‘mental health’, which is a ‘medical term’, not a ‘criminal term’. To group these two very different groups into one is very unfair to the veteran population, as many veterans carry emotional and psychological baggage and may very well become mentally incompetent to care for themselves before they die, yet they are not criminals. They still maintain ALL of their Constitutional Rights.
So, to summarize; NICS has been collecting and compiling personal information on all Americans for years, veterans are merely the first nationwide group to be targeted as a mental health demographic. The ongoing NICS collection of mental health information compiled by the VA will only further alienate veterans from utilizing the VA healthcare system. Most experts agree that it is this ‘group’, the veterans currently enrolled in the Department of Veterans Affairs healthcare system that will be the foundation on which a nationwide healthcare system is to be modeled. The NICS national database is not in the business of providing healthcare for our nation’s veterans; their only concern is with the law enforcement and gun control aspects of the data they acquire. Although only one of seven ATF categories has been implicated thus far, ‘incompetent veterans’, the ramifications and potential for abuse in the future is extensive. How long before the veteran’s database includes one or more of the remaining six ATF categories for denying ownership of a firearm? Have you ever visited a VA hospital and heard the following questions? “Do you have thoughts of hurting yourself or others?”, “Do you own a firearm?” Your answers to these questions become a permanent part of your electronic fingerprint of your personal medical and mental health records database, forever etched in cyber-hell for all of eternity. Veterans will be less likely to honestly answer such leading questions in the future for fear of having their answers used against them by law enforcement agencies.
It should be noted that even if a veteran wins an appeal of a NICS denial decision and is found to have made it on the NICS list by mistake, his or her name will never be removed from the NICS database. It is also of interest that the VBA Fast Letter has outlined very specific instructions for the destruction and disposal of any/all evidence concerning any individual NICS case or claim that the VA may be involved with. It is only by the Grace of God that OFFE has acquired this single VBA document to verify the partnership the VA has entered into with NICS, and it is a miracle this VBA document itself wasn’t shredded as instructed. That would make it damn hard to prove that your 2nd Amendment Rights had been violated, and easier for the government to make it extremely difficult for a veteran to buy or own a firearm. That my friends is the can of worms called NICS Improvement Bill of 2007, H.R. 2640. And that is how the Bill got the nickname; ‘The Veterans Disarmament Act’.
H.R. 2640 was passed by the Senate on December 19, 2007 and is currently awaiting the President’s signature before becoming law. Operation Firing For Effect is urging President Bush to stand firm for the protection of personal ‘medical’ and ‘mental health’ data collected by the Department of Veterans Affairs and Veto this gun control Bill! Even our mentally ill, incompetent, and sickest of the sick military veterans have earned Constitutional Rights worth fighting for! Your immediate action is needed to block this Bill!
The new ‘Keyword’ for the twenty-first century is; ‘DATA’ - The government agency that captures, manages, and maintains the largest amount of raw personnel data will be empowered with the knowledge to control, regulate, manipulate, and/or alter the behavior of the data harvested from that very same database. Welcome to your nightmare!
If you wish to call the White House and add your voice to OFFE’s efforts to block this legislation call, 1-866-272-6622. Call immediately!
To directly contact the NRA with your opinion of this issue, ila-contact@nrahq.org or call 1-800-392-8683.
June 2, 2000 In Reply Refer To: 212
Fast Letter 00-44
Director (00/21)All VBA Regional Offices and Centers
SUBJ: National Instant Criminal Background Check System (NICS) Process
Background:
The Brady Handgun Violence Protection Act (Brady Act) of 1993 established the National Instant Criminal Background Check System (NICS). When drafting the regulations for NICS, the Bureau of Alcohol, Tobacco, and Firearms (ATF) defined the seven categories of individuals prohibited from purchasing or redeeming firearms.
ATF incorporated the VA definition of incompetent "because of injury or disease lack the mental capacity to contract or manage their own affairs" into the category of those adjudicated as a mental defective.
The Veterans Benefits Administration (VBA), through a Memorandum of Understanding with the Federal Bureau of Investigation (FBI), is providing the FBI with information on veterans rated as incompetent, incompetent surviving spouses, adult helpless children and dependent parents.
Licensed gun dealers are required to check the NICS system to see if an individual is in a prohibited category before transferring a firearm to that individual.What VBA has Done:
In November 1999, VBA provided NICS with an initial load of data on incompetent veterans, surviving spouses, adult helpless children and dependent parents from information in the Benefits Delivery Network (BDN) and the Fiduciary Beneficiary System (FBS). This consisted of data on 88,898 beneficiaries which were loaded into the NICS index. Rights of Denied Firearms Purchasers:
If a veteran or beneficiary is denied the right to purchase or redeem a firearm, he or she may request the reason for the denial from the agency that conducted the check of the NICS data. If that individual wishes to challenge the accuracy of the record upon which the denial was based or if he or she wishes to assert that his or her rights to possess a firearm have been restored, he or she must appeal to the denying agency, i.e. the FBI or state or local law enforcement agency.
If the denying agency is unable to resolve the appeal, the denying agency will inform the individual of the reason for the denial, as well as the name and address of the agency that provided the information upon which the denial was based. If the denial was based on a VA rating or court order of incompetency and the individual denied writes to the VA Central Office VBA Contact Point requesting a correction of the record,
the request will be forwarded to the regional office with jurisdiction over the claims file.
If the denial of the purchase or redemption of a firearm was because the individual was rated as incompetent by VA or because of a court order, under the Privacy Act, 5 U.S.C. 552a, he or she has the right to request a correction or amendment of his or her records if the incompetency finding is found not to have been correct.
If the regional office determines that the incompetency determination was correct and the records cannot be amended, the claimant must be informed by the regional office that he or she has the right to appeal the decision not to amend the records by writing to the General Counsel, Department of Veterans Affairs, 810 Vermont Avenue, N.W., Washington, DC 20420.
If the beneficiary has not been rated or determined to be incompetent, he or she should be so informed. Also, the appropriate centralized VBA NICS contact point (See paragraph 9 below) should be informed of that information by telephone or e-mail so that the information may be passed on to the FBI NICS office.How Data Quality is Determined:
For quality assurance purposes, NICS is requesting a quarterly review of a sampling of approximately 100 cases to confirm the determination of incompetency, as well as the beneficiaries’ Social Security number and date of birth. From the initial load of data, they requested a review of 107 cases. This review was completed by employees at 44 regional offices and the incompetency finding was found to be appropriate in all cases.
However, a number of cases were found in which the veterans’ or beneficiaries’ names were incorrectly spelled or required a full first name, middle initial, or suffix, such as Jr. A number of other cases required the provision or correction of the beneficiaries’ Social Security number or date of birth. The next review is due in June 2000. A special review by FBI personnel of 200 claims folders will also occur this year in Washington.What You Need to Know for this Program:
Under the law, we are to routinely provide updated information on "new" incompetents. If an individual previously rated incompetent has their competency restored, under the law they are still permanently restricted from purchasing or redeeming a firearm and information concerning that individual will not be stricken from the NICS index. We are now developing procedures for providing NICS with data on veterans and beneficiaries that have been determined to be incompetent since November 1999 and for periodic future updates.Non-Retention of Records Related to NICS Background Checks:
The NICS law prohibits the retention of records as to inquiries on potential firearms purchasers. Do not retain any information related to a NICS background check for reference or backup purposes. Do not create
a memorandum for file or contact report. Information that may not be maintained and must be destroyed includes but is not limited to: all inquiry and response messages relating to the initiation and result of a NICS background check, all records relating to the individual or the transfer created as a result of a NICS background check, notes, system records, hard drives, disks, letters, personal logs, etc. Questions:
Questions should be directed to the contact listed on the appropriate
Calendar page at:
vbaw.vba.va.gov/bl/21/calendar/index.htm
Rescission:
This letter is rescinded effective June 1, 2001.
/s/
Robert J. Epley, Director
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