[House Hearing, 119 Congress]
[From the U.S. Government Publishing Office]
CORRECTING VA'S VIOLATIONS OF
VETERANS' DUE PROCESS AND
SECOND AMENDMENT RIGHTS
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HEARING
BEFORE THE
SUBCOMMITTEE ON DISABILITY
ASSISTANCE AND MEMORIAL AFFAIRS
OF THE
COMMITTEE ON VETERANS' AFFAIRS
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED NINETEENTH CONGRESS
FIRST SESSION
__________
THURSDAY, JANUARY 23, 2025
__________
Serial No. 119-2
__________
Printed for the use of the Committee on Veterans' Affairs
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available via http://govinfo.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
59-612 WASHINGTON : 2025
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COMMITTEE ON VETERANS' AFFAIRS
MIKE BOST, Illinois, Chairman
AUMUA AMATA COLEMAN RADEWAGEN, MARK TAKANO, California, Ranking
American Samoa, Vice-Chairwoman Member
JACK BERGMAN, Michigan JULIA BROWNLEY, California
NANCY MACE, South Carolina CHRIS PAPPAS, New Hampshire
MARIANNETTE MILLER-MEEKS, Iowa SHEILA CHERFILUS-MCCORMICK,
GREGORY F. MURPHY, North Carolina Florida
DERRICK VAN ORDEN, Wisconsin MORGAN MCGARVEY, Kentucky
MORGAN LUTTRELL, Texas DELIA RAMIREZ, Illinois
JUAN CISCOMANI, Arizona NIKKI BUDZINSKI, Illinois
KEITH SELF, Texas TIMOTHY M. KENNEDY, New York
JEN KIGGANS, Virginia MAXINE DEXTER, Oregon
ABE HAMADEH, Arizona HERB CONAWAY, New Jersey
KIMBERLYN KING-HINDS, Northern KELLY MORRISON, Minnesota
Mariana Islands
TOM BARRETT, Michigan
Jon Clark, Staff Director
Matt Reel, Democratic Staff Director
SUBCOMMITTEE ON DISABILITY ASSISTANCE AND MEMORIAL AFFAIRS
MORGAN LUTTRELL, Texas, Chairman
AUMUA AMATA COLEMAN RADEWAGEN, MORGAN MCGARVEY, Kentucky, Ranking
American Samoa Member
JACK BERGMAN, Michigan CHRIS PAPPAS, New Hampshire
NANCY MACE, South Carolina MAXINE DEXTER, Oregon
KEITH SELF, Texas KELLY MORRISON, Minnesota
Pursuant to clause 2(e)(4) of Rule XI of the Rules of the House, public
hearing records of the Committee on Veterans' Affairs are also
published in electronic form. The printed hearing record remains the
official version. Because electronic submissions are used to prepare
both printed and electronic versions of the hearing record, the process
of converting between various electronic formats may introduce
unintentional errors or omissions. Such occurrences are inherent in the
current publication process and should diminish as the process is
further refined.
C O N T E N T S
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THURSDAY, JANUARY 23, 2025
Page
OPENING STATEMENTS
The Honorable Morgan Luttrell, Chairman.......................... 1
The Honorable Morgan McGarvey, Ranking Member.................... 3
WITNESSES
Dr. Jordan B. Cohen, Analyst in Firearms Policy, Congressional
Research Service............................................... 6
Accompanied by:
Dr. Scott D. Szymendera, Analyst in Disability Policy,
Congressional Research Service
Mr. James McCormick, Past National Commander, Military Order of
the Purple Heart............................................... 8
Dr. Wayne Reynolds, National Treasurer, Vietnam Veterans of
America........................................................ 9
Ms. Nancy Springer, Associate Director, National Legislative
Service, Veterans of Foreign Wars of the United States......... 11
Master Sgt. Michael "Top" Washington, Master Sergeant, U.S.
Marine Corps (retired), Everytown Veterans Advisory Council.... 12
APPENDIX
Prepared Statements Of Witnesses
Dr. Jordan B. Cohen Prepared Statement........................... 33
Mr. James McCormick Prepared Statement........................... 40
Dr. Wayne Reynolds Prepared Statement............................ 41
Ms. Nancy Springer Prepared Statement............................ 42
Master Sgt. Michael "Top" Washington Prepared Statement.......... 44
Statements For The Record
The American Legion Prepared Statement........................... 49
GIFFORDS Courage to Fight Gun Violence and Brady United Against
Gun Violence Prepared Statement................................ 53
National Association of County Veterans Service Officers Prepared
Statement...................................................... 57
Questions for the Record Submitted by Aumua Amata Coleman
Radewagen...................................................... 62
Response to Questions for the Record Submitted by Aumua Amata
Coleman Radewagen.............................................. 63
CORRECTING VA'S VIOLATIONS OF VETERANS' DUE PROCESS AND.
SECOND AMENDMENT RIGHTS
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THURSDAY, JANUARY 23, 2025
Subcommittee on Disability Assistance and
Memorial Affairs,
Committee on Veterans' Affairs,
U.S. House of Representatives,
Washington, D.C.
The subcommittee met, pursuant to notice, at 1:16 p.m., in
room 360, Cannon House Office Building, Hon. Morgan Luttrell
(chairman of the subcommittee) presiding.
Present: Representatives Luttrell, Bergman, Mace, Self,
McGarvey, Dexter, and Morrison.
Also present: Representatives Crane and Van Orden.
OPENING STATEMENT OF MORGAN LUTTRELL, CHAIRMAN
Mr. Luttrell. Good morning. The Subcommittee on Disability
Assistance and Memorial Affairs will come to order.
Welcome.
All right, Mr. Self, there is no making fun of the Chairman
when I am in control of the gavel.
I would like to welcome the new members of the subcommittee
and those returning members. It is absolutely a privilege to be
the Chairman again for Disability Assistance, and my good
friend, Morgan McGarvey, from Kentucky's Third District is now
our ranking member.
Happy to have you here, sir.
Today--okay. Today we are going to take a closer look at
how the Department of Veterans Affairs seems to fail to give
veterans any due process before violating their constitutional
right to bear arms.
According to regulations issued by VA and the Department of
Justice, VA must report to the (FBI) National Instant Criminal
Background Check System, or the NICS list, the name of any
veteran who needs help from a fiduciary to manage their
finances because of a disability.
These veterans sacrificed to protect the Constitution due--
excuse me--these veterans sacrificed to protect the
Constitution due process and Second Amendment rights of every
American. Yet for over two decades, without any due process, VA
bureaucrats have stripped over 250,000 veterans with
fiduciaries of their constitutional right to possess and
purchase firearms. These practices have wrongfully prevented
veterans with fiduciaries from owning--see me after class, sir.
Dr. Reynolds. I am sorry. Sorry. I will turn it off.
Mr. Luttrell. You good to go, Mr. Reynolds?
Dr. Reynolds. I am good.
Mr. Luttrell. All right. This practice--okay. For over two
decades--I will repeat this--over 250,000 veterans with
fiduciaries of the constitutional right to possess and purchase
firearms. These practices have wrongfully prevented veterans
with fiduciaries from owning firearms, whether it be to protect
themselves and/or their families.
VA reports these veterans to the NICS list without any
ruling by any judge that they are a danger to themselves or
others. The VA does this without any medical findings by any
medical professionals that they are dangerous to themselves or
their community.
It is important to understand that the VA strips veterans
of their constitutional right to bear arms with zero medical
evidence indicating that they are suicidal, homicidal, or a
threat to their community.
Under VA's current practice, at no point before VA reports
a veteran to the NICS list does any medical professional ever
need to say that a veteran is at a risk to themselves.
It should go without saying that there is no data to
support that a veteran, who is unable to manage their finances
because of a disability, is automatically dangerous. In fact,
advocates for mental health care emphasize that assuming anyone
with a mental illness is dangerous absolutely stigmatizes
mental illness itself; also when the VA incorrectly assumes
without any evidence whatsoever that a veteran should be
stripped of their rights to bear arms or simply because they
need help paying their bills.
By comparison, in every other State and Federal legal
system, civilians and criminals must be proven dangerous by a
judge based on evidence before they are stripped of their
constitutional right to bear arms. Veterans with fiduciaries do
not get the same process.
Unlike every other American, veterans with fiduciaries must
undergo a difficult appeals process where they must prove that
they should be given back their constitutional right to bear
arms only after they have been added to the NICS list. This
means that veterans are subject to different rules compared to
every other American, even though veterans fought to protect
our American constitutional rights.
Since March 9th of 2024, VA has been temporarily prohibited
from using any funds to report a veteran assigned a fiduciary
to the NICS list without a court ruling that the veteran is a
danger to themselves or others.
This hearing will reveal that Congress must pass a
permanent piece of legislation or legislative solutions to
protect veterans' constitutional due process. This hearing is
not about guns or demand. It is about affording veterans with
the same due process rights every other American is afforded.
I look forward to hearing from our witnesses.
Thank you, Dr. Reynolds. I appreciate you traveling all the
way from Alabama, sir.
With that, I will yield to the ranking member for his
opening remarks.
OPENING STATEMENT OF MORGAN MCGARVEY, RANKING MEMBER
Mr. McGarvey. Thank you very much, Mr. Chairman. I truly am
looking forward to working with you. I have enjoyed our
relationship over the last few years and enjoyed the
relationship you had with my predecessor, Representative
Pappas.
One of the things that we have talked about several times
is that no matter where we find ourselves outside these walls,
we agree. We agree that our veterans deserve our care, they
have earned our care. They have been made both a legal and a
moral promise, and it is our job on this committee to make sure
that we live up to that promise. I look forward to working with
you to do so.
I know today's hearing is also a little bit tricky. It is a
little bit tricky because as someone with family members in the
military, veterans in my family, all around the community, I
understand that veterans do oftentimes have and enjoy owning
firearms. We also know the incredibly sobering statistics
around veteran mental health and veteran suicide. Our job on
this committee is not to enter into the hot button political
topics of the day but to figure out how to best take care of
our veterans.
These statistics are truly sobering. Today, the most at-
risk group in the entire country for death by suicide are White
men over 50 who served in the military and own a firearm.
Seventy-three percent of veteran suicides involve firearms.
We also know that death by firearm is the most lethal common
method of suicide, and male veterans are 41 percent more likely
to use a firearm in suicide attempts than nonveterans, and
female veterans are 39 percent more likely to use a firearm in
suicide than nonveterans.
This is something we have to continue to be aware of and
work on this committee. In fact, on Tuesday, Senator Blumenthal
asked incoming VA Secretary Doug Collins in his confirmation
hearing if he would commit to find ways to reduce firearm
suicides by veterans. Doug Collins said, quote, I will look to
fix anything that takes the lives of our veterans.
That means we have to talk about it too. We have to lessen
the very real stigma around seeking mental health. I told you
this is tricky. We know veterans want to enjoy owning firearms.
We do not want them to not seek care out of a fear that they
will lose access to that firearm. At the same time, we cannot
talk about death by suicide with these statistics without
talking about the firearms themselves.
I understand, I empathize with our veterans and others who
feel there is an unfairness to the current system. We have to
be willing to talk about this in a way of where the rubber
meets the road.
We are talking about a very specific subset of veterans--
veterans who have gone in for medical care who have been
diagnosed with conditions such as schizophrenia, Alzheimer's,
dementia, other conditions severe enough that they are no
longer able to handle their own affairs.
In fact, we have a 2018 study by Swanson that found that
veterans with a fiduciary are, quote, at significantly higher
risk of suicide compared to other veterans.
We are not just talking about veterans who are more at risk
for suicide than the general population. We are talking about a
population within the veterans that is at a significantly
greater risk for suicide. Seventeen veterans right now, 17
veterans a day, are dying by suicide. We cannot ignore these
facts and these studies.
The chairman and I joked about this for a minute
beforehand, and we do not need another study papering the wall
of the VA. This is worth our attention and worth finding out
exactly what is going on, because in this situation we are in
today, we are finding ourselves, I fear, too much talking about
the politics and not the policy. I want to make this a little
more concrete as we step into it.
What happens if you are a veteran in Louisville, Kentucky,
how does the rubber meet the road? How is this going to impact
you? The reality is, if you are a veteran going in for
healthcare--and it is not by going to a mental health
appointment. If you are going in to get this determination and
you are going in for mental healthcare as a veteran, that is
not how you end up here.
A veteran who goes in for mental health, for schizophrenia,
for Alzheimer's, for Post-Traumatic Stress Disorder (PTSD), for
any of the things we have talked about, that is now how you end
up here in the situation we are discussing today.
You can be found not to be competent in a medical
proceeding, but this only kicks in after you apply for a
disability benefit because of that condition. This happens when
the vet applies for benefits.
As part of the benefit application process then, the VA
records and compiles the medical evidence. This is the first
step.
What happens, you go in, there is a person who administers
a disability benefits questionnaire that the veteran community
knows as the DBQ. It can indicate that a veteran may require--
not shall--may require a fiduciary. Then there is a second
layer of review that kicks in, and the initial findings are
reviewed by claims processors trained to evaluate this medical
evidence.
If there is enough medical evidence to get the claims
processor to determine that they cannot manage their own
affairs, then the file goes to the fiduciary program. It is
during that process that the VA is required by law to notify
veterans of the proposed determination with respect to their
competency.
You have already had a layer of review, then it goes to
another layer of review and another layer of review, which will
notify you that there is a potential determination of your
competency.
At any point in this process, after you have been notified
or before, you can actually offer additional or contrary
evidence. You can appeal the VA's decisions. In fact, there are
at least six avenues for appeal. On the chart behind me you can
see through these.
We are happy to talk about ways with the majority, if we
can make these notices and appeals more accessible to vets,
more accessible to them to figure out how they can get through
this process. Again, we want to make sure we are taking care of
our veterans.
Once this determine of incompetency has been made, there
have been notices for contrary evidence, it is gone through
several layers of review, then you are determined to be
incompetent to handle your own affairs. The VA complies with
the Administrative Procedures Act, the NICS Improvement
Amendments Act, and the 21st Century Cures Act in their
notifications to veterans about the ramifications of this
decision.
That is when you get reported to NICS.
It is my understanding, however, that even if we take away
the notification to NICS, that does not automatically give you
the right to own a firearm. You have already been deemed
incompetent to handle your affairs, you have already had a
condition serious enough you cannot handle your own affairs,
and you are still incompetent under other laws and are unable
to own a firearm.
This prohibits the notification to NICS, which then the
practical effect of that is you are unable to buy a new
firearm. Has nothing to do with existing firearms, which when
you get into the depths of this--and we were talking about this
yesterday, Mr. Chairman--your fiduciary might keep you from
buying that firearm anyway, because they are in control of your
money and can determine how your money is spent because you
have applied for this disability benefit after you have gotten
your care.
Let us take a step back and look at this underlying
process. I will readily admit the process can be frustrating,
it can be confusing, and maybe we need to do some work on this
to better protect our veterans. There is always room for
improvement.
I think we can point out some fault lines in the current
process, and I know that there are veterans who feel this
process is failing them.
Those are fair and perhaps essential questions that we
should ask about the fiduciary program right now, and we do not
always have the firm evidence to answer.
I wanted to kind of set the stage today, say that no matter
what the issue is, we here on the minority side stand ready to
work with the majority to ensure the care of our veterans, to
make sure that they are getting the care they need, to reduce
that number so that veterans are no longer the most at-risk
group for suicide in our entire country, and to do the work of
this committee which is, again, to take care of them and keep
them safe.
Mr. Chairman, I look forward to doing that with you, and I
look forward to today's hearing.
Mr. Luttrell. Thank you, Ranking Member.
I ask unanimous consent for noncommittee members to
participate. In accordance with committee rules, I ask
unanimous consent that the following members be permitted to
participate in today's subcommittee hearing: Representative Van
Orden of Wisconsin and Representative Mr. Eli Crane from
Arizona.
Without objection, so ordered.
Today's panels include witnesses from Congressional
Research Service (CRS) as well as veteran advocates. Our lead
witness from Congressional Research Service is Dr. Jordan B.
Cohen, analyst in firearms policy. Welcome, sir.
Dr. Cohen is joined by Dr. Scott Szymendera--did I nail it?
Dr. Szymendera. Yes, close enough. Szymendera.
Mr. Luttrell. Szymendera. Yes, potato, tomato. Sorry,
buddy--analyst in disability policy in Congressional Research
Services.
Today's panels also include Mr. James McCormick, Past
National Commander of the Military Order of the Purple Heart.
Welcome.
Dr. Wayne Reynolds, National Treasurer for Vietnam Veterans
of America. Sir, welcome again.
Ms. Nancy Springer, Associate Director, National
Legislative Service at Veterans of Foreign Wars (VFW) of the
United States. Welcome, ma'am.
Master Sergeant Michael ``Top'' Washington, U.S. Marine
Corps, retired, of the Everytown Veterans Advisory Council.
Welcome, sir.
Thank you all for your service.
I ask that the witnesses on our panel please stand and
raise your right hand.
[Witnesses sworn.]
Mr. Luttrell. Thank you. Let the record reflect that the
witnesses have answered in the affirmative.
Dr. Cohen, sir, you are now recognized for 5 minutes to
deliver your opening statement on behalf of the Congressional
Research Service.
STATEMENT OF JORDAN COHEN
Dr. Cohen. Chairman Luttrell, Ranking Member McGarvey, and
distinguished members of the committee, my name is Jordan
Cohen, and I am a CRS analyst in firearms policy. Thank you
very much for the opportunity to testify before the
subcommittee today. I will summarize my formal written
statement with these remarks, and I will focus on the
Department of Veterans Affairs' reporting requirements for the
National Instant Criminal Background Check System, otherwise
known as NICS.
Joining me is my colleague, Scott Szymendera, and we will
be available to answer your questions.
NICS is a national name-check system for Federal firearms
licensees, otherwise known as FFLs. It is used to confirm that
a person is not prohibited from legally buying, selling, or
possessing a firearm.
Section 102 of the Brady Handgun Violence Prevention Act of
1993 requires all FFLs to request a background check through
NICS on prospective buyers before completing a firearms
transfer.
NICS reporting refers to the process for Federal, State,
local, and Tribal law enforcement departments and agencies to
report persons ineligible, according to Federal law, to own a
firearm to NICS.
That Federal law is 18 U.S.C. 922(g), and it lists the nine
classes of people who cannot buy, sell, or possess a firearm.
These classes include, but are not limited to, felons in
possession, persons convicted of misdemeanor crimes of domestic
violence, unauthorized immigrants and nonimmigrant visitors,
people who have renounced their U.S. citizenship, and persons
that are, quote, adjudicated as a mental defective, end quote.
The class ``persons that are adjudicated as a mental
defective'' does not require an order or finding from a judge,
magistrate, or other judicial authority to be added to NICS.
Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF)
regulation 27 CFR, part 478.11 notes that this determination
can be made by a court, board, commission, or other lawful
authority, and it includes persons who lack the mental capacity
to contract or manage their own affairs.
Under the VA regulations, the VA has the authority to
determine if a beneficiary in a VA program is mentally
incompetent. The VA's regulations provide the following
definition of mental incompetency: Quote, A mentally
incompetent person is one who because of injury or disease
lacks the mental capacity to contract or to manage their own
affairs, including disbursement of funds without limitation end
quote.
Thus, any person determined by the agency to be mentally
incompetent because they need a fiduciary to receive disability
benefits payments would, in turn, be reported to NICS because
they would be, quote, adjudicated as a mental defective.
This determination of mental incompetency by the VA is made
without any order from a court or judge or finding that the
veteran is a danger to themselves or others.
At the end of 2023, there was 270,851 active entries in
NICS submitted by Federal agencies for having been, quote,
adjudicated as a mental defective. Of these, 264,893, or 97.8
percent, were submitted by the VA, though not necessarily all
were because of the need for a fiduciary to manage their
financial affairs.
For veterans appealing the mental incompetency
determination, section 101(c)(2)(A) of the NICS Improvement
Amendments Act requires that each Federal department or agency
that makes mental health adjudications or commitments to mental
institutions establish processes in which reported individuals
can apply for relief from the aforementioned disability.
Beneficiaries requesting relief, though, are not entitled
to the benefit of the doubt in the evaluation of a request for
relief. The policy of the VA is to deny a request for relief if
evidence shows the beneficiary would be a danger to themselves
or others if relief were granted.
The VA must grant relief if clear and convincing evidence
shows that, one, this beneficiary is not likely to act in a
manner dangerous to the public, and two, that granting relief
will not be contrary to the public interest.
A provision in the Consolidated Appropriations Act of 2024
prohibits the VA from expending any appropriated funds in FY
2024 to report any person to NICS based on mental incompetency
without, quote, an order or finding from a judge, magistrate,
or other judicial authority of competent jurisdiction that the
beneficiary is a danger to themselves or others, end quote.
This provision was extended by the two continuing
resolutions enacted in 2024, and it will expire on March 14th,
2025, unless extended through additional legislation.
In addition, this provision does not require removal of
names that are already reported to NICS.
This concludes my brief remarks. Thank you for the
opportunity to testify, and I look forward to your questions.
[The Prepared Statement Of Jordan Cohen Appears In The
Appendix]
Mr. Luttrell. Thank you, sir. The written statement of Dr.
Cohen will be entered into the hearing record.
Mr. McCormick, sir, you are now recognized for 5 minutes.
STATEMENT OF JAMES MCCORMICK
Mr. McCormick. Thank you very much.
Chairman Luttrell, Ranking Member McGarvey, and esteemed
members of the committee, thank you for the opportunity to
discuss a critical issue that impacts our veterans: the
constitutional violations within the Veterans Affairs Fiduciary
Program related to reporting of veterans to the National
Instant Criminal Background Check System.
You know, our President just gave an inauguration speech
where he stated that we need to have a commonsense revolution.
I would say that this would be one of those areas that I hope
that reaches his desk, because this is not only a matter of
common sense, it is also a matter of due process.
What part of the right of the people to keep and bear arms
shall not be infringed do bureaucrats not understand?
You know, I listen to Members of Congress rale about due
process on many other areas but not for veterans. This is truly
a due process issue.
The very people who serve, bleed, and in many cases die for
the rights of every other citizen are denied this basic right.
This process allows veterans to lose their Second Amendment
rights without due process and based on administrative
processes and decisions of policy, not due process and
definitely not constitutional law.
It goes deeper than that. There are other violations
involved. The First Amendment, veterans may avoid seeking VA
benefits or mental health care due to fears of being reported,
infringing on their right to petition the government.
The Second Amendment we are talking about. You can strip a
veteran of their gun rights without basic due process, and that
is for any citizen without a DD214.
The Fourth Amendment, reporting veterans without judicial
oversight violates their privacy acts.
The Fifth Amendment, veterans lose their rights without due
process.
14th Amendment, veterans are treated unequally, lacking the
same protection as nonveterans.
These violations erode trust and fail to help our veterans,
contributing to the stigma that discourages them from seeking
necessary help. This fear can be devastating, exacerbating, and
it also aggravates suicide rates.
The current system does not effectively address the mental
health challenges veterans face, nor does it reduce the
alarming suicide rates.
Why should veterans be punished for seeking help? We are
not a substandard group of citizens. We deserve the same rights
and the due process as any other citizen in America.
My family has a long history of service. My grandfather was
wounded in World War II. His brother was killed in Korea. My
father was wounded twice in Vietnam. He died at 52 years of age
of cancer related to Agent Orange. I served in two combat
theaters of operation, wounded multiple times, and I gave you
two of my sons to serve this country, and both of them served
in combat.
We have sacrificed, yet we are denied the basic fairness of
due process and constitutional rights afforded to nonveterans
when it comes to this.
I urge this committee to act swiftly to correct these
violations and restore trust in our system so that these
veterans will actually seek help, because they are worried
about losing their rights or being stigmatized as being some
kind of a crazy maniac that cannot be trusted with a weapon
when just a few months before, in some cases, they were
patrolling the streets of Afghanistan and Iraq with grenades
and rifles and everything else.
We have to do better.
Last, to my fellow veterans and your family members, do not
let the fear of losing your constitutional rights keep you from
seeking help when you need it. We have your six. If you are a
veteran or you know a veteran that is in crisis, I encourage
you, I implore you, to reach out for help. Support is available
24/7. Simply dial 988 and press 1, or text 838255.
I thank you for your time, and I welcome your questions.
[The Prepared Statement Of James McCormick Appears In The
Appendix]
Mr. Luttrell. Thank you, Mr. McCormick. The written
statement will be entered into the hearing record.
Dr. Reynolds, sir, you are now recognized for 5 minutes.
STATEMENT OF WAYNE REYNOLDS
Dr. Reynolds. Chairman Luttrell, Ranking Member, and
distinguished members of this panel, I feel so humble to be
able to sit here and speak to you. I am just a poor country boy
from Alabama. I am Dr. Reynolds, but my Ph.D. is in statistics.
My son is a physician. I am also a practicing nurse. I became a
nurse after I retired as a school superintendent. I am 78 years
old.
In Vietnam, I was a combat medic on a helicopter. I have
dealt with tragedy, trauma, and death for more than any human
being should have.
When I finished my education and career, I went and I
became an Emergency Room (ER) trauma nurse because I wanted to
treat people and care about people.
I am here representing a myriad of Vietnam veterans and age
groups over 50. I am 78, and I want to tell you that we are
being treated improperly.
I heard about all the steps that VA goes through. I can
tell you that is a farce. Ask any veteran who has gone through
the myriad of problems just to get a mental disability. It is
horrendous. The older you are, the harder it is to get. Even
with the presumptives that you have got.
Today I want to bring you my professional expertise but
also my personal story, a story shared by thousands of
veterans, to shed light on the injustice perpetrated on the VA
Fiduciary Program and its unconstitutional impact on all
veterans' lives.
Specifically, I want to highlight the program's flaws,
flawed practice of linking financial incompetency with
dangerous and devastating consequences it can have on veterans'
lives and livelihood.
Under the VA Fiduciary Program, a veteran can be deemed
mentally incompetent if it determines he cannot manage its
financial programs. Does a millionaire be less threatening than
a person of poverty?
It is a gross injustice, and it is a bias against people of
lower income. I came from a family of lower income, and that is
not their fault. I am the oldest of 12 children. I grew up in
poverty. I happened to achieve and was fortunate. I got my
achievement because I was in the Army, and I went and used the
GI Bill to finish my degree.
Determination is almost often made without judicial
oversight, without medical oversight. Can I imagine me having,
as a nurse, a technician, a clerk, the person that takes the
people into the Operating Room (OR)--into the ER, determine
whether they get medical care or not?
That is ridiculous, and that is what we are doing. We are
allowing VA clerks to make important decisions that affects
lives perpetually.
I spent decades working in education and finance. As a
professional in these fields I can unequivocally say the
financial struggles of mismanagement do not correlate--
statistically--they do not correlate with any propensity for
violence or dangerous behavior.
Poor people or people with economic--are not violent. That
is a terrible thing to put on our society and certainly I do
not agree. It is unfair and unconstitutional.
Allow me to speak about my personal experience. I returned
from Vietnam in 1969 as a 21-year-old mature person, I guess,
who would have seen hundreds of deaths. When we picked them up
on the helicopter, we brought people back in pieces. I worked
in a hospital for sometime, and it was devastating.
I did not have any money. I relied on the GI Bill when I
came back to University of Georgia to pursue my degree. I did
not have any money. I took part-time jobs working in the
library.
If somebody had looked at my financial situation and
reported me to this, as this agency does, I could never have
gotten a job in education. I could never--because in Alabama, I
am on the State board--elected State Board of Education in
Alabama. We insist on a very stringent background search for
everybody we hire. We would not hire me if I had that blemish
on my record.
You see, my life works have been in education and finance,
and if I had been reported to the NICS, I would not have had
the opportunities I have had.
I would just restate the instance that we have had before.
The amendments that we are violating, the personal freedom that
we are violating, and the due process rights of humanity are
being violated, and we need to readdress that.
Thank you very much, Mr. Chairman.
[The Prepared Statement Of Wayne Reynolds Appears In The
Appendix]
Mr. Luttrell. Thank you, sir. The written statement of Dr.
Reynolds will be entered into the hearing record.
Ms. Springer, you are now recognized for 5 minutes.
STATEMENT OF NANCY SPRINGER
Ms. Springer. Chairman Luttrell, Ranking Member McGarvey,
and members of the subcommittee, on behalf of the men and women
of the Veterans of Foreign Wars of the United States and its
auxiliary, thank you for the opportunity to provide testimony
regarding this important topic.
The VFW strongly supports protecting the constitutional
rights of veterans assigned Department of Veterans Affairs'
fiduciaries and preventing inappropriate assignment to the
National Instant Criminal Background Check System, or NICS.
However, underneath this constitutional rights issue lay a
process that stakeholders could substantially improve to both
safeguard veterans and ensure due process.
Conversation with a former VA field examiner, now a VFW
employee, yielded several actionable suggestions based on her
experiences in the field. Accordingly, the VFW offers the
following recommendations.
After VA sends a veteran the proposed incompetency
determination letter, require a second medical exam to confirm
or refute that proposal and to assess the veteran's probability
to cause harm. Not being able to manage one's finances does not
necessarily imply a veteran is a danger to self or others or
could not responsibly own and use firearms.
Require VA field examiners to operate in two-person teams
while conducting in-person interviews. To conduct an effective
interview, VA field examiners must meet the veteran in his or
her environment.
Our VA field examiner informed us that this meeting place
could range from a veteran's job site to a home. However, the
homes she visited included homeless tent encampments and Skid
Row in Los Angeles, with significant safety concerns.
A team would enhance the examiner's personal security and
encourage interviews in a veteran's domain, contribute to a
more accurate assessment of the veteran's mental state and
probability to harm self or others.
Reassess all COVID-era fiduciary assignments. Our VA field
examiner informed us that they routinely conducted virtual
interviews during COVID.
A virtual interview, while understandable during a public
health emergency, makes it more difficult to detect vital
verbal and nonverbal cues that are instrumental to detecting a
mental health ailment or the telltale signs of someone likely
to harm self or others.
Revise all VA letters that inform veterans of VA's proposed
fiduciary assignment. Simply and directly explain the
significance of the fiduciary assignment, its relationship to
NICS referral, and the veteran's appeal rights.
Also, VA must send the letters in a timely manner to notify
the veteran prior to the field interview. Our VA field examiner
was often the one informing the veteran of the fiduciary
assignment, its relationship to NICS referral, and the
consequent restriction of firearms purchases and ownership.
Some veterans reacted angrily when they realized the loss
of their Second Amendment rights. In one case, a veteran placed
a firearm on the table during the interview to intimidate the
VA field examiner, putting her in a potentially dangerous
situation while merely doing her job.
As a last step, require a judicial review prior to NICS
referral to guarantee due process before infringing on
veterans' constitutional rights.
However, veterans can challenge VA's proposed incompetency
determination by requesting a hearing before VA by submitting
additional evidence. Alternatively, veterans can petition VA
for relief from the firearms prohibitions imposed by the law.
Few veterans exercise these options, and the ones that do are
rarely successful.
According to a July 2023 congressional Research Service
report, in Fiscal Year `22, there were 135 hearings on
incompetency determinations, 24 of which resulted in
competency. The same report noted that VA processed 33
petitions of relief of firearms prohibitions but did not grant
relief in any of these cases. However, 11 veterans who
petitioned for relief were determined to be competent and were
subsequently removed from NICS.
The experiences of our VFW service officers and our former
VA field examiner corroborate these statistics.
In the case of the VA field examiner, her familiarity with
the overall process allowed her to intervene and successfully
halt inappropriate NICS referral for some beneficiaries.
However, none of her beneficiaries have successfully appealed a
NICS referral.
Unfortunately because of the existing process, some of our
VFW members are hesitant to use VA healthcare. They fear
inadvertently making a disqualifying statement or disclosing a
disabling condition that could ultimately prohibit their
possession or purchase of a firearm.
We want our members to use VA healthcare. Unfortunately,
the stigma could unnecessarily deprive them of the earned
benefits and compromise their health. However, the process
changes we propose could preserve the Fiduciary Program for
deserving beneficiaries, while simultaneously safeguarding
veterans and preventing inappropriate NICS referrals.
Chairman Luttrell, Ranking Member McGarvey, this concludes
my testimony. I welcome any questions from you or members of
the subcommittee.
[The Prepared Statement Of Nancy Springer Appears In The
Appendix]
Mr. Luttrell. Thank you, ma'am. The written statement of
Ms. Springer will be entered into the hearing record.
Master Sergeant Washington, sir, you are now recognized for
5 minutes.
STATEMENT OF MICHAEL WASHINGTON
Mr. Washington. Thank you.
Good afternoon, Chairman Luttrell, Ranking Member McGarvey,
and members of the subcommittee. My name is Master Sergeant
Michael Washington, United States Marine Corps, retired.
I am a proud veteran, the second of four generations of
marines and numerous other branches of the service in my
family. I served as an infantry platoon sergeant and
counterintelligence agent for 23 years.
As a civilian, I spent three decades as a Seattle
firefighter. Now I am a mental health counselor serving
veterans and first responders, many whom are veterans
themselves.
Thank you for allowing me to speak with you today.
On 14 June 2008, as I prepared to go on a fire response on
engine 16 in Seattle, a white, government-issue Chevy Suburban
with 2 marines in the front seat suddenly arrived at the
station. I knew instantly that they were there to inform me
that my son, Sergeant Michael T. Washington of Gulf Company 2nd
Battalion 7th Marines, had been killed in action in
Afghanistan.
My world stopped. I did not know how to feel his loss. I
tried to man-up as dictated by my culture. My long dormant PTSD
and accumulation of childhood traumas, tragedies witnessed as a
firefighter, and my four combat tours erupted like a
psychological Mount Saint Helens.
Rather than talk, I drank and I fought, which were
acceptable responses in my generational and professional
cultures. Eventually, mentally exhausted, I sought an end to
the pain. I engaged in risky behaviors, especially riding my
Harley-Davidson through red lights, hoping for an instant end
to my suffering. Finally, I sought release by leaping to my
death from a nearby bridge. Just as I was about to go over the
railing, I heard my son's voice plain as day. It said, Dad,
your story does not end here. You have work to do.
I soaked in his voice and his message, and after a few
minutes, walked off the bridge, never to return to suicidal
ideation. I was not fixed by a long stretch, but I was no
longer suicidal.
Had I had access--easy access to a firearm, I would never
have had that chance. I would not be able to do the work I do
now to help other veterans and first responders.
We are experiencing an epidemic of veteran suicides. More
than 6,400 veterans died by suicide in 2022. More than 73
percent involved firearms.
This should be an urgent call to action to stop this
epidemic. To do that, we must do something about access to
firearms in moments of crisis.
The background check system is the best tool we have to
prevent access to a firearm, but it is only as strong as the
information that is in it. When information is left out, people
cannot have guns that can get them.
For 30 years, until last March, the VA provided information
on certain veterans not allowed to have guns under Federal law
to the background check system with due process protections in
place. These were veterans the VA had diagnosed with serious
mental health disorders. Of the veterans who died by suicide in
2022, more than 1,500 had been diagnosed with a mental health
or substance abuse disorder.
Last March, Congress effectively blocked the VA from
providing this information to the background check system.
There is now a growing number of veterans the background check
system knows nothing about--the exact cohort at risk.
Congress should think twice before continuing to block the
VA like this or taking other steps to undermine this important
tool.
I also want to address other access interventions. Like the
continuum of force in the military, these are also a continuum.
Some are about creating time and space between someone in a
crisis and a gun, secure storage in and outside the home, or
giving the keys to gun safes and lockboxes to someone else.
Others are about preventing access, like State-level Do-Not-
Sell lists and Extreme Risk laws.
Veteran suicide is a public health issue, not a political
one. Both parties understand that. President Trump and
President Biden both took steps to reduce veteran suicide,
including firearm suicides. This bipartisan work must continue.
I am humble to be of some small service to this cause, the
cause that I am proud to say everyone in this room is dedicated
to.
My son gave what Abraham Lincoln called his last full
measure of devotion to this country and what it stands for, and
I aim to continue the fight in his name. I am and I remain at
your service.
Thank you again, and I look forward to your questions.
[The Prepared Statement Of Michael Washington Appears In
The Appendix]
Mr. Luttrell. Thank you, sir. Master Sergeant Washington's
statements will be entered into the record.
We now move to questioning. I recognize myself for 5
minutes.
Dr. Cohen, the Supreme Court says that the government must
have a very good reason for stripping Americans of the
constitutional right. Does the VA--in your opinion, does the VA
have good reasons to strip our veterans of their Second
Amendment right?
Dr. Cohen. When it comes to legal scholarship, I can reach
out to one of the CRS legislative attorneys and report back,
but----
Mr. Luttrell. I have got you right here in front of me. It
is all you, buddy.
Dr. Cohen. I, in terms of legal issues, do not--it is not
my expertise. What I can say is that the VA, since the 1990's,
since the passage of the Brady Handgun Violence Prevention Act,
and since the ATF recognized VA policy and VA interpretation of
regulations regarding the NICS system to be accurate--and that
is how the VA has done it--in many ways that could be
considered to have been done because of either beliefs in
underlying causes between being in the Fiduciary Program, being
somebody who needs fiduciary to manage their disability
benefits.
It also could be done in terms--like, viewed as an
automatization issue in the sense that, once the Brady Handgun
Violence Prevention Act was passed, these agencies were not
given unlimited funds to hire, like, something like a, quote/
unquote, NICS reporter.
A lot of agencies just try to make the policy as seamless
as possible, the reporting as seamless as possible. The Fix
NICS Act of 2018 also very much emphasized that agencies should
do their best to automatize reporting to NICS and to kind of
take any thought really out of it and just have a very
systematic approach.
Mr. Luttrell. Mr. McCormick----
Mr. McCormick. Yes, sir.
Mr. Luttrell [continuing]. so when it comes to the
fiduciary process with the VA--and Mr. McGarvey and I have
absolutely been digging in to a very deep hole trying to figure
out at the granular level the problem set here. The waters are
extremely muddied.
From start to finish, can you walk me through--because we
have, in a sense, that by the time the veteran gets to the
fiduciary threshold, there has been a process in place that has
picked apart every single aspect of that veteran's life, and,
like, okay, we are here.
My concern is and what we do not know and it is like--and
what the ranking member said is, like, what really happens.
Can you give me--in your opinion, is there enough--is there
enough meat on the bone from start to finish or--because a
veteran's rights are just as important than any other
American's rights. The fact that this is happening and we do
not have the processes in place that we think are there, can
you walk me through, in your opinion, what that looks like?
Mr. McCormick. Well, I can walk you through in my knowledge
of seeing other people go through the process.
Many times the information flow from the VA back to the
veteran is not consistent. There are many veterans that are,
you know, in there asking for assistance, whether it be for a
mental issue or whether it be for a physical issue, and then
they run into an issue with finances, managing their own money.
Then they end up in a position to where, you know, they are
reported.
As far as this lengthy process that was just brought up in
the beginning of this, that is the first that we have really
seen.
I can tell you that I have a very close, personal
interaction with this, where a young man was placed on this
list and inadvertently was denied a job as a police officer and
denied the right to purchase a firearm.
Now, that was quite a shock to that person and quite a
shock to his dad.
Mr. Luttrell. Did he say at any time that he was aware that
that was going to be the circumstances of a fiduciary?
Mr. McCormick. No, sir. He had no idea.
Mr. Luttrell. Ms. Springer, can you back that up? When the
veterans receive their VA notices, it seems like there is an
inadequate explanation on exactly where they are headed. Can
you add some amplifying information, please?
Ms. Springer. Yes, certainly. I am referring to an actual
proposal of incompetency letter from one of our case files.
Mr. Luttrell. Yes, ma'am.
Ms. Springer. I have some real data here. I will compliment
VA in that, on the second page, though, they do have a heading
that says how this decision could affect you. I do think VA
could rewrite these letters just a little bit more----
Mr. Luttrell. VA has a problem with letters going to
veterans----
Ms. Springer. Yes.
Mr. Luttrell [continuing]. that it takes 5 or 6 lawyers in
order to get through it, I got that.
Ms. Springer. Yes.
Mr. Luttrell. In that letter right there on that second
page, would you read me that?
Ms. Springer. Okay. There is a heading on the second page
that says ``How this decision could affect you,'' and that
decision is referring to VA considering that this person should
be deemed incompetent and then have a fiduciary.
It is very wordy.
Under Federal law----
Mr. Luttrell. Could be or will be?
Ms. Springer. It is. Oh, could you say it again, please.
Mr. Luttrell. Could be or will be?
Ms. Springer. How this decision could affect you. What I am
referring to is what is called a proposal of incompetency. That
is one of the first steps in the process. VA is proposing to
the veteran that you may be incompetent and you may ultimately
get a fiduciary.
It allows the veteran to respond to this letter within a
60-day period.
Mr. Luttrell. Okay. Thank you.
Ms. Springer. Yes.
Mr. Luttrell. Mr. McGarvey, sir, you are recognized for 5
minutes.
Mr. McGarvey. Thank you Mr. Chairman.
First of all, I want to thank everyone for their service--
your continued service to our country.
Master Sergeant Washington, please know we are especially
grateful to you and sorry, terribly sorry for your loss.
I think one thing you are hearing from me and the chairman
is we want to make sure that this process is also working for
our veterans and that there is clear information.
I want to also point out a couple of things here after the
testimony that--you all correct me. We have been asking. We
want to get this right.
When you go through this process, through the disability
process because of incompetency in particular, we have not
found a single instance of a veteran who has had their firearm
confiscated because of this issue alone.
Just--I do think it is important for some--because we do
not want veterans not seeking treatment under the idea that
that might happen. It has never happened, and if we are wrong,
please tell us when that has happened and why.
I also want to talk a little bit about the
constitutionality of this, only because this is the first time
in my tenure in Washington that on the dais and on the panel I
am the only lawyer. Every time there is always more lawyers at
the table, and I just want to say that this provision has never
been found to be unconstitutional.
There has been lots of litigation around firearms, there
are lots of think tanks, and there are lots of groups out there
who are interested in bringing these types of lawsuits.
While there might be different opinions on the
constitutionality of it, the fact is that under the current law
in the United States, it is not unconstitutional. I just want
to clear that up as well.
I want to talk a little bit about what goes on in the NICS
data base currently. Dr. Cohen, for you, I just want to
summarize.
The VA's determinations, it is a lengthy process. By the
time you are determined incompetent and then looking for a
disability benefit for that incompetency, which is what we are
talking about here today, the VA's determinations are based on
the medical evidence of record and not arbitrary, correct?
Dr. Cohen. Medical record does play a role in the process,
absolutely.
Mr. McGarvey. It is ``the'' part of the process, right?
They are here because they have gone in for treatment, they
have been deemed incompetent, and now they are looking for a
disability because of that incompetence. Yes, the medical
record plays a big part of this.
I want to reiterate that the VA----
Dr. Szymendera. Excuse me. Excuse me, Congressman. If I----
Mr. McGarvey. It is my time. It is my time.
Dr. Szymendera. Oh, please. Please, go ahead, yes.
Mr. Luttrell. Doctor, you are not recognized.
Dr. Szymendera. Okay.
Mr. McGarvey. I want to reiterate that the VA did not make
up this idea to report beneficiaries deemed mentally
incompetent, and they are obligated to do so under the Gun
Control Act of 1968, mentioned in your report, Dr. Cohen, and
the Brady Act.
What we are talking about here today on the Kennedy
amendment does not change or repeal either one of those laws.
Is that correct?
Dr. Cohen. Yes, the Kennedy amendment, it does not repeal
the Gun Control Act or the Brady Handgun----
Mr. McGarvey. I just want to point out that when we are
talking about this process--we are talking about protecting
veterans, we are talking about all these sorts of things--a lot
of this is window dressing. There are other things in play--and
you can disagree with them--but this is what is actually
happening and what is going on behind it.
I have just a little bit of time left, and I want to focus
again on the health of our veterans because what we are all
trying to do here is do what is best for our veterans.
Master Sergeant Washington, I want to thank you again for
sharing your story. You talked a little bit about some of what
happened in your own life.
Can you elaborate on your experience with service-connected
disabilities and how some of them--we might be able to go about
mitigating some of those risk factors you experienced, in the
next 36 seconds?
Mr. Washington. Yes, sir. My experience actually was pretty
streamlined because I think the government was in the mode of
clearing the backlog. That is just my opinion. There was a
backlog of PTSD claims and things like that through the VA. I
felt that my process went fast, and it was well served, and I
talked to a mental health professional who listened to my story
and then gave his opinion. That is what it looked like. It
seemed to work out pretty well in my case. I know that is not
everybody's case.
Mr. McGarvey. Thank you, Mr. Chairman. I yield back.
Mr. Luttrell. Thank you, sir.
Ms. Mace, you are recognized for 5 minutes.
Ms. Mace. Thank you, Mr. Chairman, and honored to be here
today serving on your committee. I was the first one here, by
the way, so--and I want to thank everyone who is here with us
this afternoon. Thank you for your service. Thank you for
sharing your personal stories of pain. It is very difficult for
me to hear that as a mom. It is very tough. I want to thank you
all today.
It is very clear to me the VA's definition of mentally
incompetent has nothing to do with mental health and everything
to do with the simple fact that veterans need help balancing
their checkbooks.
It is a stigma to assume veterans are dangerous or suicidal
simply because they have a mental illness. Every veteran with a
mental illness deserves to be treated like an individual with
individual needs.
We cannot make sweeping policy changes based on harmful
generalizations about disabled veterans, and policies must be
based on real evidence. The VA's Fiduciary Program fails to
consider any evidence of dangerous, and it also fails to
provide veterans with due process. We have got to correct it.
Now, I actually think it is great that there is only one
lawyer on this subcommittee and that we are--no offense. You
spent a lot of time and money in law school, I am sure. I think
it is a good thing that we have--that not everybody here is an
attorney, that we can ask some of the basic, most commonsense
questions about policies for our veterans. We have many
veterans on this committee who can also get into the heart of
it.
Under current VA procedures, veterans' rights are stripped
from them by purely administrative rather than judicial
process. Under these procedures, veterans' rights are unjustly
stripped from them, and Congress must right this wrong. We must
also make sure that the VA is working for our vets and not
against them.
My first question is for Ms. Springer today. Do you think
there may be survivors of military sexual trauma (MST) who
hesitate to seek VA mental healthcare because of the risk that
VA could strip them of their rights?
Ms. Springer. Thank you for the question, Congresswoman.
I would broaden that to actually just all veterans in
general, our VFW members, not just specifically MST survivors
because of the perception, whether true or not, that if they
say the wrong thing, if they present a disability and
condition, they could go from there to the NICS incompetency
determination and then to a fiduciary assignment and then to
NICS.
Ms. Mace. My next question is for Dr. Szymendera. Is it
difficult for veterans to prove they are not dangerous in order
to convince the VA to remove them from the NICS list?
Dr. Szymendera. Well, I think you have seen the statistics
that when we get to this question of whether the veteran is a
danger or not, that really only comes into play if the veteran
applies--or files a petition for relief disability of which,
according to statistics that we have seen from the VA, very few
veterans--I mean, less than a hundred a year--do that.
At no other point in this process, from the very beginning
to the determination of incompetency, to all of the appeals up
to the U.S. Court of Appeals for veterans' claims, et cetera,
none of that addresses the issue of whether the veteran is a
harm--potentially a harm to themselves or others.
It is only if you file the petition for the relief of
disability, then VA looks at a number of factors to determine
that level of risk.
Ms. Mace. Okay. Captain McCormick, my question for you
today, do veterans receive due process before the VA reports
them to NICS?
Mr. McCormick. Absolutely not.
Ms. Mace. What roadblocks do you veterans experience in the
appeals process?
Mr. McCormick. Multiple. It is a timely and it is a costly
process that, you know, you are asking a veteran to go and
fight to resecure the very rights that they served to defend
and protect. You are stripping them of a constitutional right--
that is a fact--and then you are asking them, well, you have
got an opportunity, you can go and fight for it.
Well, I guess we could pull you over, arrest you for
something, and say, well, you can always fight to get your
right of freedom back. I think that is the issue, is the level
of fairness and the lack of due process as far as the judicial
process. It is just ultimately unfair.
Ms. Mace. Does it erode trust in the VA for veterans?
Mr. McCormick. A hundred percent. A hundred percent erodes
trust in the VA.
Ms. Mace. Okay. Thank you, Mr. Chairman. I yield back.
Mr. Luttrell. Yes, ma'am. Thank you, Ms. Mace.
Ms. Dexter, you are recognized for 5 minutes.
Ms. Dexter. Thank you, Mr. Chairman. Thank you first to you
and Ranking Member McGarvey for having this important hearing.
I very much appreciate it.
To our witnesses, thank you all for your service and for
being here. It is extremely important.
As a former VA healthcare physician, I witnessed firsthand
the importance of having a well-functioning system, and you
have highlighted some of the challenges to that.
I also witnessed the devastating impacts of access to
firearms for veterans, many of whom were struggling with mental
health conditions and not getting the care that they needed or
the advice that they needed.
The one thing that I really want to elevate from Master
Sergeant Washington's compelling and heartfelt, heartbreaking
testimony is that moment of time that he was given, that
opportunity to turn back.
What we know is that people with access to firearms, well,
in that moment of despair, lose that opportunity to turn back.
I take care of people in the intensive care unit. These are
folks who have survived, and almost none of them are firearm
victims.
My first question, Master Sergeant Washington, is, can you
comment on whether it would benefit veterans to ensure that
every VA healthcare provider receives lethal means safety
counseling training.
Mr. Washington. Personally, I think absolutely that would
be beneficial, just to give the information--if I understand
your question, just counseling, right?
Ms. Dexter. Counseling.
Mr. Washington. Yes. To get the information that, you know,
here is some of the risk factors, here is what is going on,
here is what is of danger to you. Why would not anybody want to
hear that?
Ms. Dexter. Great.
Mr. Washington. Why would that be harmful?
Ms. Dexter. Thank you, Master Sergeant Washington. Would it
also be beneficial for community care providers to receive this
training?
Mr. Washington. Again, I think that is--that would be a
bedrock, just getting that information straight from the
beginning.
My mantra is training, safety, and accountability with
firearms--training, safety, and accountability with firearms.
Ms. Dexter. A hundred percent agree. Not talking about
taking them away but making sure----
Mr. Washington. No, ma'am.
Ms. Dexter [continuing]. people are safe.
Mr. Washington. Not at all.
Ms. Dexter. Very good. In preventing veteran suicide,
Master Sergeant Washington, as you have said, veteran suicide
is an epidemic in this country. It is unacceptable, in my mind.
It is a tragedy that an average or more than 17 veterans die
per day of suicide.
We have to do better by our veterans, and I think we are
all in agreement on that. It will require, again, putting that
time and space in that moment of the lowest point in someone's
life and an action they could take.
Based on your personal experiences, how can the VA and
Veterans Service Organizations (VSO)s work together to provide
veterans that time and space and make meaningful progress in
addressing veteran suicide rates in this country?
Mr. Washington. Well, that is a great question. I think
part of it is what we are doing right now, having these hard
conversations. Right now I am hearing two very opposite ideas
of what the system looks like and what it is doing and what it
is not doing. I appreciate that we are here having the
conversation.
Also my spoken testimony, we are about safety and securing
our weapons. If somebody is in crisis, being able to turn your
weapons over to a friend or a colleague or trusted adviser, or
to the VFW, just getting them out of their hands so they do not
make that permanent decision for that temporary problem. That
is what it is all about.
There is a number of fronts that we move forward on to
protect our veterans, some of whom, like myself, have been in
those dark times, and we are literally--quite literally--on a
bridge.
Ms. Dexter. Thank you so much.
I just want to state that as we discuss NICS and the
Fiduciary Program, it is really important that we remain laser-
focused on the end goal of ensuring our veterans and their
families are protected from harm, and really appreciate the
testimony today.
With that, I yield back. Thank you.
Mr. Luttrell. Thank you, ma'am.
Mr. Self, sir, you are recognized for 5 minutes.
Mr. Self. Thank you, Mr. Chairman.
I just want to make sure I am in the right hearing. We have
heard a lot of issues here, but the memo that I was given says
we are correcting VA's violations of veterans' due process and
Second Amendment rights.
Is that what this hearing is about?
Thank you.
Dr. Cohen, for you, are there other groups of Americans
that have similar processes that do not constitute what most of
us consider the constitutional high bar to take away one's
Second Amendment rights? Are there other groups of Americans
that have this same low bar?
Dr. Cohen. Just clarification for my own purposes. Are you
asking like are other----
Mr. Self. We treat veterans one way. Is there another group
of Americans that we treat the same way without judicial or
medical review?
Dr. Cohen. Right, because of 18 U.S.C. 922(g), the nine
classes, a lot of the classes are--by definition, require some
sort of judicial review or court order. For example, like----
Mr. Self. The question is real simple. Is there another
group of Americans, another class of Americans that are treated
like our veterans? Yes or no?
Dr. Cohen. I mean, like----
Mr. Self. Who would like to answer that question?
Yes, sir. Dr. Reynolds.
Dr. Reynolds. I do not think so. I do not think so.
Mr. Self. I suspect that is the answer. Thank you so much.
Now----
Dr. Reynolds. May I clarify?
Mr. Self. No, just----
Dr. Reynolds. Thank you, sir.
Mr. Self. We have heard some things here about settled law.
When was--and this may be for Dr. Cohen as well. When was the
last time the Supreme Court ruled on this issue? The Warren
Court?
Dr. Cohen. As I mentioned earlier, I do not cover legal
issues at CRS, so I cannot----
Mr. Self. Exactly. We are in a constitutional issue here
that we are discussing. As far as I know, the Supreme Court's
never ruled on it.
We need to--Dr. Cohen, if I heard your testimony right, you
are satisfied with the legal procedure to do this. I looked at
your written testimony. I heard your spoken testimony. You are
satisfied, if I understand you right, that this is proper.
Dr. Cohen. I have not given an opinion as such. The
written--I am just straightforward saying this is how the
process works. I am not saying the process is good, bad, or
otherwise, just that this is what the process looks like.
Mr. Self. I am not sure who this should go to. Probably
Captain McCormick, I would guess. Is it true that we put--and I
want to remind people of what the NICS is, because I heard some
mental health issues--mental health mentioned earlier.
This is the National Instant Criminal Background Check
System. We need to remember what this is--criminals.
I think, Captain McCormick, do we put veterans into this
National Instant Criminal Background Check System with
absolutely no evidence that they are a danger to anyone?
Mr. McCormick. Yes, sir, you do. You also label them as a
criminal because you put them on that list.
Mr. Self. Thank you very much, Mr. Chairman. I yield back.
Mr. Luttrell. Thank you, Mr. Self.
Mr. Crane, sir, you are recognized for 5 minutes.
Mr. Crane. Thank you, Mr. Chairman, for allowing me to
waive onto this committee today. Thank you to you guys for
showing up.
Let us just get this straight right now. What is this
hearing that we are having really about? It is really about
whether or not unelected bureaucrats can strip away Second
Amendment God-given rights from our veterans if they need help
managing their finances or their assets. Is that correct?
I think it is. All right.
This is wrong in so many ways. What I am hearing my
colleagues on the other side of the aisle say is that, well, we
are concerned about veteran suicide, and so since most of them
are committing suicide with firearms, you know, we need to have
measures and tools to, you know, take those firearms away from
them. That is what I am hearing.
What about civilians that are committing suicide and using
firearms? Are we going to also argue in this body that they
should have their firearms and their Second Amendment rights
taken away from them?
I looked up fiduciary, and here is a quick summary
definition: Someone who is legally obligated to act solely in
the best interest of another party managing their assets or
affairs.
There are many people I know and I am sure many of you know
people out there that need help managing their assets or their
affairs. I am sorry, but I do not remember in the Constitution
where it says if somebody needs help managing their assets or
their affairs that they should have their Second Amendment
rights taken away from them.
When it comes to suicide, a lot of these individuals, a lot
of veterans--and there is four of us on this panel right now
that are not only veterans but we are all from the special
operations community who I think are against this. We will tell
you this right now.
Many of our veterans that are struggling with PTSD and have
some of these issues that we are talking about here today, one
of our biggest issues is fear and trauma, because we thought we
might lose our life or we lost our life in battle against other
people with guns.
If you want to increase veteran suicide, take some of these
issues who are afraid, isolated, and alone and take away their
ability to defend themselves. That is a really good way to
actually increase what these guys say that they are trying to
stop. All right?
I want to ask you guys a question. At any point does the VA
have to establish that a veteran is a threat to themselves or a
danger to others when administratively reporting a veteran with
a fiduciary to NICS, which, again, is the National Instant
Criminal System?
Dr. Reynolds. No.
Dr. Szymendera. No.
Mr. Crane. No. Okay. Thank you.
Does having a fiduciary alone mean that someone is mentally
incompetent or mentally deficient?
Dr. Reynolds. No.
Mr. McCormick. No.
Ms. Springer. No.
Dr. Szymendera. No, but----
Mr. Crane. Hold on. Is there any data correlating having a
fiduciary or being associated with increased risk of homicide
or suicide?
Dr. Reynolds. No.
Ms. Springer. No.
Mr. McCormick. No.
Mr. Crane. Those three quick answers right there show the
American people exactly what has been taking place here:
violation of Second Amendment rights without due process.
Captain McCormick, is it due process to have unelected
bureaucrats making a designation about a veteran's mental state
or, you know, need of a fiduciary? Is that due process, sir?
Mr. McCormick. No, sir, it is not.
Mr. Crane. Why do you think it is important that, you know,
for our constitutional God-given rights to be stripped of us,
why do you think it should be necessary to have due process,
sir?
Mr. McCormick. Well, so that we can ensure that that does
not happen. If it happens to us, it might--it looks like we are
almost in this socio class that they are testing this on
almost. I am not trying to be--you know, have a conspiracy
theory, but we are the only class of citizens that they do this
to.
Mr. Crane. Yes. Mr.--my colleague, Mr. Self, over here, I
believe you were Special Forces, is that right, Mr. Self? Yes.
He brought up--is there any other class of people that are
treated this way?
Dr. Reynolds. No.
Mr. McCormick. No, sir.
Mr. Crane. No. Why is it fair for veterans to be treated
this way?
Dr. Reynolds. It is not.
Mr. McCormick. It is unfair.
Mr. Crane. How many veterans have lost their Second
Amendment rights, to your knowledge, Mr. McCormick, because of
these, you know, overreaching VA regulations?
Mr. McCormick. I think the number was just over 270,000,
sir.
Mr. Crane. Yes. That is what I saw as well. That is why--
this is my bill--H.R. 496, that would not only stop the VA from
doing this in the future, but would restore the God-given
constitutional rights to these veterans. We need to get--we
need to get behind this.
I hope my colleagues on the other side of the aisle, many
of them who are not veterans, would take it maybe from the
veterans up here who are saying, hey, this is not the way to do
it.
Mr. Washington, God bless you, sir. Thank you for your
service. I am dearly sorry for the loss of your son. I mean
that.
Mr. Washington himself said, when he was feeling suicidal,
what did he say? He was running red lights on his motorcycle
hoping that someone would end it quickly or he was thinking
about jumping off a bridge.
Let us be really clear in here right now. If we are going
to have tough conversations, let us have tough conversations.
There are numerous, countless ways to commit suicide. Taking
firearms and constitutional rights from veterans away is not
going to help. It is actually going to hurt our veteran
community.
Thank you. I yield back.
Dr. Reynolds. Thank you.
Mr. Luttrell. Thank you, Mr. Crane.
Dr. Morrison, you are recognized for 5 minutes.
Ms. Morrison. Thank you, Mr. Chair.
Thank you to the witnesses both for your service and for
being with us today to talk about this important issue.
I am a physician by training, and my husband is an Army
combat veteran, a former Army Ranger. Veteran suicide is an
issue that concerns me deeply and greatly.
I am genuinely interested--and I apologize that I had to
step away to another hearing--but I am genuinely interested in
hearing from each of you, if there is time, what is the single
biggest, most important thing that Congress could do to
decrease veteran suicide?
Dr. Reynolds. Can I comment?
Ms. Morrison. Please.
Dr. Reynolds. Create more efficiency in the VA for treating
the problems we have medically. You are a physician. I am a
nurse. You did not hear that, you were not here. I can tell
you, I am a professional educator, I am a statistician. You do
not deal with the problems at the root level, you drive people
to suicide.
I am--in 1993, I faced the intention of committing suicide
by taking Seconal. Because of my relationship, I got it. I got
300 Seconals from my friends.
Suicide and weapons are tangential but not the problem. I
took 25 years to get my disability. I have been all the way to
Federal--to courts here in Washington, a lot--and a lot because
of my ability to be politically and socially astute and get my
way.
Veterans are ignored. Veterans are suffering. They are--
people say to me, thank you for your service, but they do not
act it. The bureaucracy that exists in veterans, and the idea
that a clerk may--the testimony was made earlier that, yes,
medical testimony goes into the determination, but a medical
person does not do it. Nobody with psychological training does
it.
That is the error of this whole thing. We are turning it
over to inept, ill-trained bureaucrats, and I resent that. As a
combat medic, it is stupid.
Ms. Morrison. Thank you, sir.
Others.
Mr. McCormick. I would just echo with what he said. Again,
when you talk about the meaning of this whole hearing, it is
about due process. You are stripping these veterans of their
dignity. You are stripping them of their right to their Second
Amendment right that they served to protect and defend. That is
not helping at all. That is hurting more than it is helping.
You are preventing them from getting jobs. My own son
cannot--you know, he had a job that he was supposed to become a
police officer. Now he cannot become a police officer. Why is
that? Well, because he went to combat, served this country, he
had some problems and he came back and he got some counseling.
Again, the stigmatization, the over-stigmatization that we
are all unstable, crazy, and all of these other things that I
have heard since I have returned from my combat tours in `04,
`05, `90, `91, and we can just go down the pike, has always
been, are you okay, are you okay, just because I get upset or
just because we happen to disagree on something.
We are not unstable. We are okay. We just need to be
treated like every other citizen in this country. My God, I got
shot three times in combat fighting for this country. You know,
for me to come back and for you to even entertain the thought
of taking away my constitutional freedom, that is not common
sense. That is not right. We need to fix this.
Ms. Morrison. Thank you, sir.
Other ideas for what Congress could do to decrease veteran
suicide?
Ms. Springer. We favor overhauling this process. In my
opening statement, we would include a medical screening as part
of this process to determine the veteran's propensity to harm
self or others and a judicial review before NICS assignment.
I have two components. We have control over the process,
because underlying the constitutional rights issue is a
process, and a process can be improved and that is what we
propose to improve it is have a medical component, make sure
that person, as much as you can, is not a danger to self or
others, and before a NICS assignment have a judicial review,
and define all those terms, define how this would go in
statute.
Ms. Morrison. Thank you.
Mr. Washington.
Mr. Washington. I think, in my opinion--I work with law
enforcement first responders as well as veterans, and it really
is about changing that stigma about mental health and seeking
mental health counseling.
We are starting to make inroads. We are--it is a giant
super tanker that we are trying to turn in a different
direction. That is slowly happening. It is not moving as fast.
I know results are not the same across the board, but we keep
fighting that fight in the general sense.
Ms. Morrison. Thank you, sir. Thank you again for your
service.
I yield my time, Mr. Chair.
Mr. Luttrell. Thank you, ma'am.
Mr. Van Orden, sir, 5 minutes.
Mr. Van Orden. Thank you, Mr. Chairman.
Dr. Cohen, is the Veterans Affairs Administration a law
enforcement agency?
Dr. Cohen. No.
Mr. Van Orden. Okay. Good, we cleared that up.
I have had--with the passing of Senior Chief Mike Day, I
have had 21 of my friends commit suicide, 21 of them. Those are
all Navy SEALs. You can read about them. They all died because
of spiritual wounds that they received by serving our country.
Dr. Reynolds, you are right, the problem is we are not
treating the root cause. Mr. Crane is right.
Dr. Reynolds. Thank you.
Mr. Van Orden. You are welcome. Keith is right. Everybody
over here when we are talking about this, this issue, is
correct when they are saying we are not addressing the problem,
that we need efficiencies in the VA.
I want to read something to you. ``The sacred rights of
mankind are not to be rummaged for among old parchments or
musty records. They are written, as with a sunbeam, in the
whole volume of human nature, by the hand of the divinity
itself; and can never be erased or obscured by mortal power.''
Alexander Hamilton wrote that in 1775, and this is what he
is saying. He is saying that either you believe that our
constitutional rights are given to us by God and simply
articulated to us in the Constitution or you do not.
If you believe that to be true, that makes them immutable.
If something is immutable, it cannot be erased. It cannot be
erased by the hand of man. It could only be erased by the hand
of God.
What, unfortunately, is taking place is that the Veterans
Affairs Administration is essentially playing God because they
are trying to remove something that is immutable. Words have
meaning. Our country is based on this document, and our country
is nothing without this document. We are not.
Mr. McGarvey, who I respect tremendously, I just got to
tell you something. When you say the--you know, the medical
record is the one thing. Now, we have got a doctor here.
Morgan, you were a corpsman, were not you, before? Okay. We are
both medics, right?
When you write--when you see a patient, you write something
called a SOAP note. The S in the SOAP note stands for
subjective. Then it is objective, then it is assessment and
plan.
Every single one of these medical records that we are
looking at, the first thing in there is a subjective view by
the healthcare provider about the person. If it is subjective,
it cannot be objective because that is the next line in the
SOAP note.
When we look at that document, a medical record written by
a human hand, it is subjective and it is not immutable.
Philosophically, we either have to say we are going to treat
our veterans like the apex of creation that they are and
respect them or we are not. I am not willing to take away a
veteran's right.
We fought to defend the Constitution of the United States
against all enemies, foreign and domestic. We did not fight to
have a bureaucrat be able to subjectively remove our
constitutional rights.
Dr. Reynolds. Thank you.
Mr. Van Orden. You are welcome, sir, and thank you for your
service.
Master Sergeant Washington, my wife and I, Sara Jane, lost
our sweet Sydney last year, and I know what it means to lose a
child. There is no darkness at the end of that tunnel. I am
very thankful that your son spoke to you on that bridge.
We do have to understand and we have to think globally
about this and know that we are going to lose more veterans by
degrading them, by treating us like children, than we will from
them committing suicide with a firearm.
Sir, you have my deepest condolences, and I thank you for
your son's sacrifice and for your service.
With that, I yield back.
Mr. Luttrell. Thank you, sir.
Mr. Bergman, sir, you are recognized for 5 minutes.
Mr. Bergman. Thank you, Mr. Chairman.
Well, in listening, I do not know there is anything else to
be said, unless you want to change small dog to puppy or happy
to glad and pick pepper from fly manure. In the end, you get
two piles and you cannot tell which is which.
How many people are left to talk, Mr. Chairman?
Mr. Luttrell. I would say we will possibly do a second
round.
Mr. Bergman. Okay. All right. Well, the point is, just as a
data point, sometimes this microphone is used to put out our
message in such a way that it is not exactly adding to the goal
of helping veterans; it is adding to our social media presence
and all that.
I get it. You know, if we took away microphones and
cameras, you know, and this and then, you would have a lot more
interesting, I think, and more productive conversations, but
that is just the bias of one of the three--and I repeat,
three--remaining Vietnam veterans in Congress.
I mean, as I look to my left and right here, I see, you
know, Iraq/Afghanistan veterans who served with great honor
under great duress. There is only three of us left from
Vietnam, and--you know, Mike Thompson from California, Jim
Baird from Indiana, and me.
All that means is we have been around a long time. We saw
in our country, when we came back, we were not welcomed back.
We saw that the country as a whole saw the mistakes made of the
sixties in not welcoming us back. We got it right after Desert
Shield, Desert Storm, and after, you know, Iraqi Freedom and
Enduring Freedom and all of that.
We as a society with a conscience and understanding that
everything we have comes from God, to include especially our
rights, not bureaucrats, we have an opportunity here. As we,
this committee, sets the framework for holding the Veterans
Administration accountable to the higher standards necessary to
maintain the rights and the freedoms of all of our veterans,
because if they have them, it is going to spread out across our
population to help others, especially family members who have
suffered the loss as well.
The only thing we can do in this committee is ask
questions, set the stage, and set the momentum. It is going to
be up to all of you in the trenches to get it done. I am--now I
am just going to stop here, because I do not want to waste
time.
As a marine, I am basically frugal, some might say cheap. I
do not waste money--yours, mine, or anybody else--and I do not
waste ammunition.
We have to continue to press the message that our veterans
need every bit of assistance, not necessarily help but
assistance to enable them to live their own productive lives,
however much time is left.
With that, Mr. Chairman, I am just going to yield back
because, again, I am not saying anything that has not already
been said.
Mr. Luttrell. Thank you, General.
Thank you to every one of you for coming.
Thank you for your service, Mr. Washington. God bless you.
I am very sorry for your loss.
Ranking Member, you said you wanted to enter something into
the record?
Mr. McGarvey. Sure do. Thank you, Mr. Chairman.
We would please ask unanimous consent to enter the
following letter from Everytown for Gun Safety into the hearing
record.
Mr. Luttrell. Without objection.
Mr. Luttrell. Thank you to all the witnesses testifying
before us today in revealing how crucial it is to end VA's
practice of violating the constitutional due process and Second
Amendment rights of veterans with fiduciaries.
With that, I yield for the ranking member, your closing
statement, sir.
Mr. McGarvey. Thank you, Mr. Chairman.
Mr. Luttrell. One moment, Mr. Ranking Member, sir.
I apologize. Mr. Crane, yes, sir.
Mr. Crane. Mr. Chairman, can I enter my bill, H.R. 496,
into the official record?
Mr. Luttrell. Without objection.
Mr. Luttrell. Mr. McGarvey, sir, you are recognized.
Mr. McGarvey. Thank you, Mr. Chairman.
Thank you once again, everyone, for your service, for being
here today.
As I said at the top of my hearing, I hope--it truly is my
hope and my desire that we can work together to address any and
all of the shortcomings at the VA with regards to this and any
process which has to do with our veterans' care. For example,
Captain McCormick, the idea that someone is falsely reported is
something we have got to look at and how that happens.
I know that the chairman and I have talked a lot about
where do we get to the core of this issue. I think it is also
worth pointing out again today that when you look at what we
are doing, we are talking about preexisting laws. Those laws,
like the 1968 Gun Control Act, like the Brady Law, have not
been found unconstitutional.
Even if passed, the law we are talking about today would
still leave veterans with a determination of mental
incompetency that under current law would keep them from going
and purchasing a new firearm. It is just that this amendment
would keep it from being reported to NICS.
There is a lot of work that we have to do here. The effort
requires thoughtful analysis, what the program does, what it
does not do, what it entails, and an honest attempt to bridge
these data gaps, and a sincere admission of policymakers what
we know and what we do not know exactly of how the rubber meets
the road for the veterans.
I want to again emphasize this is about veteran safety. We
are not just talking about all veterans. We are talking about
veterans--a very select subset of veterans who have not only
been deemed incompetent but are claiming a disability benefit
because of that incompetence. This is the subsection we are
talking about.
The only published studies we could find--and we were
looking for the studies and the data--show that this particular
group is at a higher risk for suicide than the normal veteran
population.
I want to emphasize, Mr. Chairman, that everyone on our
side stands ready to work with you on improving all aspects of
the Fiduciary Program and to protect our veterans' health in a
way that balances their need for treatment and the protection
of their rights.
I yield back.
Mr. Luttrell. Thank you, sir.
To the members, once again, thank you for your service. To
all of my veterans who are in the committee room today, thank
you for your service.
We will, myself and the committee, will break this down to
parade rest. We will find where the problem sets exist, where
the collision points are. We will make clarifications, and we
will move legislation to make sure that our veterans are
treated like every other human being in this country because
they absolutely have those rights.
I ask unanimous consent that all members have the right--
have 5 legislative days to revise and extend their remarks and
include extraneous materials. Without objection, so ordered.
Adjourned.
[Whereupon, at 2:41 p.m., the subcommittee was adjourned.]
=======================================================================
A P P E N D I X
=======================================================================
Prepared Statements of Witnesses
----------
Prepared Statement of Jordan Cohen
Overview:
Chairman Luttrell, Ranking Member McGarvey, and distinguished
Members of the Committee, my name is Jordan Cohen, and I am a CRS
analyst in firearms policy. Thank you very much for the opportunity to
testify before the subcommittee. My testimony will focus on National
Instant Criminal Background Check System (NICS) reporting requirements
for the Department of Veterans Affairs (VA). Joining me is my colleague
Scott Szymendera and we will both be available to answer your
questions.
NICS is a national namecheck system for Federal Firearms Licensees
(FFLs). It is used to confirm that a person is not prohibited from
legally buying, selling, or possessing a firearm.\1\ It is administered
by the Federal Bureau of Investigation (FBI).
---------------------------------------------------------------------------
\1\ FBI, ``About NICS,'' https://www.fbi.gov/how-we-can-help-you/
more-fbi-services-and-information/nics/about-nics, accessed December
17, 2024.
---------------------------------------------------------------------------
Federal law at 18 U.S.C. 922(g) lists the nine classes of people
(listed below) who cannot ship, transport, possess, or receive firearms
and ammunition. The fourth class, persons ``adjudicated as a mental
defective'' does not require an order or finding from a judge,
magistrate, or other judicial authority of competent jurisdiction for
this information to be added to NICS. \2\ Furthermore, ATF regulation
27 CFR Sec. 478.11 reads: ``a determination by a court, board,
commission, or other lawful authority that a person . . . lacks the
mental capacity to contract or manage his own affairs.'' \3\
---------------------------------------------------------------------------
\2\ Federal Bureau of Investigation, National Instant Background
Check System: Prohibiting Categories Defined By Statute, February 2016,
https://ucr.fbi.gov/nics/general-information/nics-index-brochure.
\3\ 27 C.F.R. Sec. 478.11.
---------------------------------------------------------------------------
Accordingly, the Department of Veterans Affairs (VA) interpreted
this provision such that any beneficiary determined by the agency to be
mentally incompetent because they need a fiduciary to receive benefit
payments would, in turn, be reported to NICS in the prohibited class of
persons ``adjudicated as a mental defective.'' While veterans
determined by the VA to be mentally incompetent and thus reported to
NICS have certain appellate rights, the determination of mental
incompetency by the VA, prior to March 2024, was made without any order
from a court or judge or finding that the veteran is a danger to
themselves or others.\4\
---------------------------------------------------------------------------
\4\ P.L. 118-42, Title IV, Section 413.
---------------------------------------------------------------------------
A provision in the Consolidated Appropriations Act, 2024 (P.L. 118-
42) prohibits the VA from expending any appropriated funds in FY 2024
to report any person to NICS based on mental incompetency without ``an
order or finding from a judge, magistrate, or other judicial authority
of competent jurisdiction that the beneficiary is a danger to
themselves or others.'' \5\ This provision was extended through March
14, 2025 by the two continuing resolutions enacted in 2024 (P.L. 118-83
and P.L. 118-158). Because this provision is in an annual
appropriations bill, rather than in U.S. code, it expires on March 14,
2025 unless extended through additional legislation. In addition, this
provision does not require removal of names already reported to NICS.
---------------------------------------------------------------------------
\5\ P.L. 118-42, Title IV, Section 413.
---------------------------------------------------------------------------
NICS Reporting Requirements
The Gun Control Act of 1968, as amended (GCA), makes it illegal for
nine classes of persons to ship, transport, possess, or receive
firearms and ammunition. The classes of prohibited persons under the
GCA are
1. persons convicted in any court of a crime punishable by
imprisonment for a term exceeding one year;
2. fugitives from justice;
3. unlawful users or addicts of any controlled substance as
defined in Section 102 of the Controlled Substances Act (21
U.S.C. Sec. 802);
4. persons ``adjudicated as a mental defective'' or committed
to mental institutions;
5. unauthorized immigrants and nonimmigrant visitors (with
exceptions in the latter case); \6\
---------------------------------------------------------------------------
\6\ Until 2011, the Bureau of Alcohol, Tobacco, Firearms, and
Explosives (ATF) interpreted this provision to apply to any noncitizen
whose immigration status was ``nonimmigrant alien,'' regardless of
whether the alien had been required to obtain a visa prior to arrival
at a port of entry. In 2011, the ATF was informed by the Department of
Justice's Office of Legal Counsel (OLC) that the ATF interpretation was
too broad and that the prohibition ``applies only to nonimmigrant
aliens who must have visas to be admitted, not to all aliens with
nonimmigrant status'' (Department of Justice, Office of Legal Counsel,
Firearms Disabilities of Nonimmigrant Aliens Under the Gun Control Act,
35 Op. O.L.C. 171 (2011), October 28, 2011, https://www.justice.gov/d9/
opinions/attachments/2021/02/18/2011-10-28-firearms-nonimmig-
aliens.pdf). Under current ATF regulations at Title 27, Part 478, of
the Code of Federal Regulations, nonimmigrants who enter the country
validly without visas (e.g., under the Visa Waiver Program) are
eligible to purchase firearms and ammunition. However, those
individuals must demonstrate that they are ``present in a State with
the intention of making a home in that State.''
---------------------------------------------------------------------------
6. persons dishonorably discharged from the U.S. Armed Forces;
7. persons who have renounced their U.S. citizenship;
8. persons under court-ordered restraints related to harassing,
stalking, or threatening intimate partners or children of such
intimate partners; and
9. persons convicted of misdemeanor crimes of domestic
violence.\7\
---------------------------------------------------------------------------
\7\ 18 U.S.C. Sec. 922(g).
NICS is a national namecheck system for Federal Firearms Licensees
(FFLs). It is used to confirm that a person is not prohibited from
legally buying, selling, or possessing a firearm.\8\ It is administered
by the Federal Bureau of Investigation (FBI). A new background check is
initiated every time an FFL contacts NICS electronically or by
phone.\9\ Section 102 of the Brady Handgun Violence Prevention Act of
1993, P.L. 103-159, requires all FFLs to use NICS to conduct background
checks on prospective buyers before completing a firearm transfer. Only
FFLs are permitted to request a background check through NICS.\10\ NICS
reporting refers to the process, for federal, state, local, and tribal
law enforcement agencies, to report persons ineligible, according to
federal law, to own a firearm to NICS. In order to purchase a firearm,
a prospective buyer must complete a Firearms Transaction Record (ATF
Form 4473). Using the information acquired from ATF Form 4473, NICS
staff verify the prospective buyer's eligibility to purchase a firearm
and issue a final ``proceed'' or ``denied'' response to the FFL. In
some cases, NICS may issue a temporary ``delayed'' response if the
initial NICS check reveals a record that requires more research to
determine the prospective buyer's eligibility to possess a firearm. If
the FFL has not received a final determination from NICS within three
business of the ``delayed'' response, it is within the FFL's discretion
whether or not to transfer the firearm (if state law permits the
transfer).\11\
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\8\ FBI, ``About NICS,'' https://www.fbi.gov/how-we-can-help-you/
more-fbi-services-and-information/nics/about-nics, accessed December
17, 2024.
\9\ FBI, ``Firearms Checks (NICS),'' https://www.fbi.gov/how-we-
can-help-you/more-fbi-services-and-information/nics, accessed December
17, 2024.
\10\ Some states require that sales from private individuals go
through NICS. In such cases the private seller can contract with an FFL
to perform the NICS background check for the seller.
\11\ ATF, A NICS DELAY, October 29, 2004, p.1, http://www.atf.gov/
file/61086/download.
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NICS Amendments
Two pieces of legislation have been enacted to improve the
efficiency and frequency of NICS reporting and are relevant to VA
reporting: the NICS Improvement Amendments Act of 2007 (NIAA: P.L. 110-
180 ) and the Fix NICS Act of 2017 (P.L. 115-141).
NIAA
The NIAA was enacted after the 2007 mass shooting at Virginia Tech
University and was meant to improve federal department and agency
reporting to NICS as well as reporting from state, local, and tribal
law enforcement agencies. This information included reporting
prohibiting mental health adjudications and commitments.\12\
Specifically, the NIAA authorizes the Attorney General to obtain
electronic versions of information from federal agencies on persons
disqualified from receiving firearms and requires federal agencies to,
quarterly, provide such information to the Attorney General. It also
requires these agencies to update, correct, modify, or remove records
and notify the Attorney General of such actions.\13\ Furthermore,
states must certify to the Attorney General, once every two-year
period, that at least 90 percent of all records relevant to a
determination of whether a person is disqualified from possessing or
receiving a firearm have been submitted to NICS.
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\12\ The Virginia Tech school shooter was ``cleared'' by NICS to
purchase firearms from an FFL because the shooter's prohibiting mental
health adjudications were not made available to NICS. DOJ, BJS, NICS
Act Record Improvement Program (NARIP), March 3, 2021, https://
bjs.ojp.gov/programs/nics-improvement-amendments-act.
\13\ P.L. 110-180.
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FBI NICS Appeals and Overturning
Under the GCA, there is a provision that allows the Attorney
General (previously, the Secretary of the Treasury) to consider
petitions from a prohibited person for ``relief from disabilities'' and
to have his firearms transfer and possession eligibility restored.\14\
Since FY 1993, however, a limitation (or ``rider'') on the ATF annual
appropriations for salaries and expenses has prohibited the expenditure
of any appropriated funding for ATF to process such petitions from
individuals.\15\ Conversely, under the NICS Improvement Amendments Act
of 2007 (P.L. 110-180), any Federal agency that submits any records on
individuals considered to be mentally incompetent and thereby
prohibited from possessing a firearm under the GCA must provide an
avenue of administrative relief to those individuals, so if their
mental health or other related conditions improve, their firearms
rights and privileges may be restored. As a condition of grant
eligibility, states must provide similar administrative avenues of
relief for those purposes, that is, ``disability relief.''
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\14\ 18 U.S.C. Sec. 925(c). See also Relief from Disabilities Under
the Act, 27 C.F.R. Sec. 478.144.
\15\ For FY 1993, see P.L. 102-393, 106 Stat. 1732 (1992). For FY
2024, see P.L. 118-42,138 Stat. 139 (2024) and the ATF appropriation
for salaries and expenses. It reads: ``none of the funds appropriated
herein shall be available to investigate or act upon applications for
relief from Federal firearms disabilities under section 925(c) of title
18, United States Code.''
Relief from Disability\16\
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\16\ In this context, the term disability refers to a prohibited
person's inability to purchase or possess firearms and ammunition.
Section 101(c)(2)(A) of the NIAA requires that each federal
department or agency that makes mental health adjudications or
commitments to mental institutions that would affect the ability of
persons to ship, transport, possess, or receive firearms and
ammunition, to establish processes in which such persons can apply for
relief from disability. Applications for disability relief must be
processed by federal departments and agencies within one year of
receipt. If a federal department or agency fails to resolve an
application for disability relief within one year for any reason,
including a lack of appropriated funds, the application is deemed to
have been denied without cause and subject to de novo judicial
review.\17\ All denials of disability relief by federal departments and
agencies are subject to judicial review by the U.S. District Court for
the district of residence of the petitioner.
---------------------------------------------------------------------------
\17\ De novo review is a standard of review used by an adjudicative
body to rule on evidence and matters of law without giving deference to
the findings, rulings, or conclusions of a lower-level adjudicative
body.
---------------------------------------------------------------------------
Section 101(c)(2)(B) of the NIAA provides that for persons who are
granted relief from disability or who are subjects of mental health
records that are prohibited from being provided to the Attorney
General, the underlying events that were the basis for those records
are deemed not to have occurred for the purposes of determining
eligibility to ship, transport, possess, or receive firearms and
ammunition.
Petitions for Relief from Disability
The NIAA requires the VA to allow a beneficiary determined to be
incompetent and referred to NICS to petition for relief from
disability. As this relief is not provided by the VA, the VA does not
have a statutory ``duty to assist'' a beneficiary in a request for
relief, and a beneficiary is not entitled to the ``benefit of the
doubt'' in the evaluation of a request for relief.\18\ A denial of
relief from disability may not be appealed to the Board of Veterans
Appeals or U.S. Court of Appeals for Veterans Claims.\19\ The decision
can, however, be reviewed by the U.S. District Court for the district
of residence of the beneficiary.
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\18\ Per Title 38, Section 5303A, of the U.S. Code, the VA has a
``duty to assist'' claimants with their claims for benefits
administered by the VA. Per Section 5107(b), when there is an
``approximate balance of positive and negative evidence regarding any
issue material to the determination of a matter,'' the VA must give the
``benefit of the doubt'' to the claimant.
\19\ VA, M21-1 Adjudication Procedures Manual, Part X, Subpart ii,
Chapter 6, Section D, Topic 4.g, December 28, 2022, https://
www.knowva.ebenefits.va.gov/system/templates/selfservice/va_ssnew/help/
customer/locale/en-US/portal/554400000001018/content/554400000177977/
M21-1-Part-X-Subpart-ii-Chapter-6-Section-D-Processing-Awards-to-
Incompetent-Beneficiaries#4.
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The policy of the VA is to deny a request for relief if evidence
shows the beneficiary would be a ``danger to self or others'' if relief
were granted. The evidence must be ``clear and convincing'' to deny a
request for relief, and according to the VA, claims processors must
deny a request for relief from disability if any of the following is
reflected in the beneficiary's record:
an assessment performed by the beneficiary's primary
mental-health physician that indicates the beneficiary would be
a danger to self or others if VA granted the request;
a diagnosis of mental disability with symptoms that
include the presence of suicidal or homicidal ideations;
a diagnosis of substance abuse with symptoms that
would render the beneficiary a danger to self or others;
a reputation for violence, which a claims processor
has confirmed by personally contacting the person that cited
the reputation;
conviction of a felony unless the beneficiary
presents evidence that, notwithstanding the felony conviction,
the right to possess a firearm has been restored;
conviction of a misdemeanor in the past five years
for committing or attempting to commit a violent offense;
pending felony or misdemeanor charge for committing
or attempting to commit a violent offense (including, but not
limited to, menacing, stalking, assault, or battery); or
a charge for a violent offense (including, but not
limited to, menacing, stalking, assault, or battery) that has
not been brought to trial because a court, board, or commission
has determined that the beneficiary lacks the mental capacity
to proceed with a trial unless:
competency has been restored; or
the beneficiary has been rehabilitated through any
procedure available under the law.\20\
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\20\ Ibid., Topic 4.i.
If clear and convincing evidence to deny a request for relief does
not exist, the VA must consider granting the request. The VA must grant
relief if clear and convincing evidence ``affirmatively, substantially,
---------------------------------------------------------------------------
and specifically'' shows that
the beneficiary is not likely to act in a manner
dangerous to the public; and
granting relief will not be contrary to the public
interest.\21\
---------------------------------------------------------------------------
\21\ Ibid., Topic 4.j.
In FY 2022, the VA indicated it processed 33 petitions for relief
and did not grant relief in any of these cases.\22\
---------------------------------------------------------------------------
\22\ VA data provided to CRS by the House Committee on Veterans'
Affairs.
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Fix NICS Act
The Fix NICS Act requires the Attorney General to establish a plan
to ensure maximum coordination and automation of reporting to NICS and
release a semiannual report on NICS reporting by each federal
department or agency, and state and tribal governments. Each federal
department or agency is required to certify that it has accurately and
efficiently provided disqualifying records of persons prohibited from
receiving or possession a firearm. The act also requires each
department or agency to establish and comply with their own
implementation plan to maximize accurate submissions. Moreover, the Fix
NICS Act requires the Attorney General to publish names of each federal
department or agency, and state and tribal government that failed to
achieve compliance with an implementation plan, a description of why,
and the types and number of records that have not been submitted.\23\
---------------------------------------------------------------------------
\23\ Section 601(F) of P.L. 115-141.
---------------------------------------------------------------------------
Recently, some have voiced concern about the comprehensiveness of
NICS reporting requirements for federal departments or agencies, and
state and tribal governments. They are concerned that it is possible
that individuals who have court-identified risks for the perpetration
of violence toward themselves or others may still be allowed to possess
firearms because, for example, there is ``substantial heterogeneity in
[state] NICS reporting requirements and lack of clarity around
processes,'' \24\ despite the September 2022 Fix NICS Act report, which
is the most recent, suggesting that NICS reporting was up by twenty
percent since 2018.\25\ There have also been concerns expressed that
government agencies as well as state, local, and tribal law enforcement
overreport names to NICS, resulting in ``false positives'' every
year.\26\
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\24\ Marian E. Betz, Deirdre M. Bowen, and Ali Rowhani-Rahbar, et
al., ``State Reporting Requirements for Involuntary Holds, Court-
Ordered Guardianship, and the US National Firearm Background Check
System,'' Journal of the American Medical Association, vol. 4, no. 11
(November 17, 2023).
\25\ Department of Justice, The Department of Justice's Semiannual
Report on the Fix NICS Act, September 2022, https://www.justice.gov/d9/
nics_semiannual_report_september_2022.pdf.
\26\ John R. Lott Jr, ``Background Checks Are Not The Answer To Gun
Violence,'' New York Times, February 12, 2018, https://www.nytimes.com/
2018/02/12/opinion/politics/background-checks-gun-violence.html.
---------------------------------------------------------------------------
Department of Veterans Affairs NICS Reporting
As described above, one of nine classes of persons prohibited by
the GCA from shipping, transporting, receiving, or possessing firearms
or ammunition are persons who have been ``adjudicated as a mental
defective'' or have been committed to mental institutions.\27\ Neither
the GCA nor the Brady Act define the term ``mental defective'' or
provide any additional guidance on what would constitute such an
adjudication.
---------------------------------------------------------------------------
\27\ 18 U.S.C. Sec. 922(g)(4).
---------------------------------------------------------------------------
The ATF's regulations implementing the Brady Act provide the
following definition for the term ``adjudicated as a mental
defective:''
(a) A determination by a court, board, commission, or other lawful
authority that a person, as a result of marked subnormal intelligence,
or mental illness, incompetency, condition, or disease:
(1) Is a danger to himself or to others; or
(2) Lacks the mental capacity to contract or manage his own
affairs.
(b) The term shall include----
(1) A finding of insanity by a court in a criminal case; and
(2) Those persons found incompetent to stand trial or found not
guilty by reason of lack of mental responsibility pursuant to
articles 50a and 72b of the Uniform Code of Military Justice,
10 U.S.C. 850a, 876b.\28\
---------------------------------------------------------------------------
\28\ 27 C.F.R. Sec. 478.11.
---------------------------------------------------------------------------
Under the VA's regulations, the VA has the authority to determine
if a beneficiary in a VA program is mentally competent or mentally
incompetent.\29\ The VA's regulations provide the following definition
of mental incompetency:
---------------------------------------------------------------------------
\29\ 38 C.F.R. Sec. 3.353.
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 affairs, including disbursement of funds without
limitation.\30\
---------------------------------------------------------------------------
\30\ 38 C.F.R. Sec. 3.353(a).
The VA employees tasked with adjudicating whether a veteran is
financially incompetent are Veterans Service Representatives and Rating
Veterans Services Representatives and their training does not require
them to have legal or medical expertise.\31\
---------------------------------------------------------------------------
\31\ U.S. Government Accountability Office, Testimony Before the
Subcommittee on Disability Assistance and Memorial Affairs, Committee
on Veterans Affairs, House of Representatives: VA Disability Benefits:
Training for Claims Processors Needs to Be Enhanced, GAO-24-107510,
July 23, 2024, pp. 3-4, https://www.gao.gov/assets/gao-24-107510.pdf.
---------------------------------------------------------------------------
Generally, if the VA determines that a beneficiary is incompetent,
that person's benefits will be paid on his or her behalf to a third-
party fiduciary.\32\ The VA can later reverse a determination of
incompetency based on evidence of the beneficiary's competency.
---------------------------------------------------------------------------
\32\ For additional information on benefit payments to a fiduciary,
see the VA website at https://www.benefits.va.gov/fiduciary/.
---------------------------------------------------------------------------
The VA's regulations require that no determination as to a
beneficiary's competency be made unless the ``medical evidence is
clear, convincing, and leaves no doubt as to the person's
incompetency'' or there has been ``a definite expression regarding the
question by the responsible medical authorities.'' \33\ A determination
of incompetency must be based on all evidence of record and be
consistent with the percentage of disability and facts related to any
hospitalization or commitment of the person. In a case in which there
is a reasonable doubt as to the beneficiary's competency to contract or
manage his or her affairs, the regulations require the doubt to be
resolved in favor of a determination of competency.\34\
---------------------------------------------------------------------------
\33\ 38 C.F.R. Sec. 3.353(c).
\34\ 38 C.F.R. Sec. 3.353(d).
---------------------------------------------------------------------------
21st Century Cures Act Provision
Section 14017 of the 21st Century Cures Act (P.L. 114-255) codified
the existing due process policies and regulations of the VA regarding
determinations of incompetency. As codified by this legislation, the VA
may not determine that a beneficiary is incompetent unless the VA has
provided all of the following to the beneficiary:
notice of the proposed determination and supporting
evidence;
an opportunity to request a hearing;
an opportunity to present evidence, including
evidence from a medical professional or other person, of the
beneficiary's ability to manage benefits paid by the VA; and
an opportunity to be represented, including by
counsel, at no expense to the federal government, at a hearing
and to bring a medical professional or other person to provide
testimony at the hearing.\35\
---------------------------------------------------------------------------
\35\ 38 U.S.C. Sec. 5101A.
---------------------------------------------------------------------------
VA Submissions to NICS
It is the VA's policy, subject to the limitation through March 14,
2025, imposed by the continuing resolutions, to submit the names of all
beneficiaries determined to be incompetent to the Attorney General for
inclusion in NICS. \36\ This policy has been consistent since the ATF
first promulgated its regulations implementing the Brady Act. In the
preamble to the publication of the final rule regarding categories of
prohibited persons, the ATF addressed a comment submitted on the Notice
of Proposed Rulemaking by the VA regarding how the VA would interpret
the definition of ``adjudicated as a mental defective'' as follows,
indicating that ATF considered the VA's planned interpretation to be
correct:
---------------------------------------------------------------------------
\36\ VA, M21-1 Adjudication Procedures Manual, Part X, Subpart ii,
Chapter 6, Section D, Topic 4.a, December 28, 2022, https://
www.knowva.ebenefits.va.gov/system/templates/selfservice/va_ssnew/help/
customer/locale/en-US/portal/554400000001018/content/554400000177977/
M21-1-Part-X-Subpart-ii-Chapter-6-Section-D-Processing-Awards-to-
Incompetent-Beneficiaries#4.
In its comment, the U.S. Department of Veterans Affairs
correctly interpreted the proposed definition of ``adjudicated
as a mental defective'' to mean that any person who is found
incompetent by the Veterans Administration under 38 CFR 3.353
will be considered to have been adjudicated as a mental
defective for purposes of the GCA. Section 3.353 provides that
a mentally incompetent person is one who, because of injury or
disease, lacks the mental capacity to contract or manage his or
her own affairs.\37\
---------------------------------------------------------------------------
\37\ ATF, ``Definitions for the Categories of Persons Prohibited
from Receiving Firearms,'' 62 Federal Register 34637, June 27, 1997.
As of the end of 2023, of the 270,851 active entries in NICS
submitted by federal agencies for having been ``adjudicated as a mental
defective'' or committed to mental institutions, 264,893 (97.8 percent)
were submitted by the VA, though all of these were not necessarily
because a veteran was determined mentally incompetent and needed a
fiduciary to collect benefit payments.\38\ While state laws vary
significantly about who is required to report an individual to
NICS,\39\ if the appropriations rider preventing this expires without
replacement on March 14, 2025, VA may report people to NICS without a
court order as mental incompetency determinations for veterans are
determined through an administrative, rather than judicial process.\40\
---------------------------------------------------------------------------
\38\ FBI, Active Records in the NICS Index as of December 31, 2023,
pp. 3-4.
\39\ Marian E. Betz, Deirdre M. Bowen, and Ali Rowhani-Rahbar, et
al., ``State Reporting Requirements for Involuntary Holds, Court-
Ordered Guardianship,'' Journal of the American Medical Association
Health Forum, vol. 4, no. 11 (November 17, 2023).
\40\ Additionally, per a 2020 report from the GAO, ``the Veterans
Benefits Administration reported that it provides relevant records for
those individuals rated as ``mentally incompetent'' to manage their
financial affairs to the NICS Indices on a monthly basis using an
automated system.''40 This automatic reporting began occurring on a
weekly basis in July 2020. See Department of Justice, The Department of
Justice Semiannual Report on the FIX NICS Act--September 2022,
September 2022, p. 29, https://www.justice.gov/d9/
nics_semiannual_report_september_2022.pdf.
---------------------------------------------------------------------------
VA policy requires that the following statement (or one with
similar language) be included in the letter notifying a beneficiary of
a proposed incompetency determination:
The Brady Handgun Violence Prevention Act prohibits you from
purchasing, possessing, receiving or transporting a firearm or
ammunition based upon our determination that you are
incompetent to handle your VA funds. You may be fined and/or
imprisoned if you knowingly violate this law.
You may apply to VA for relief of firearms prohibitions imposed
by the law by submitting your request to the address at the top
of this letter on the enclosed VA Form 21-4138, Statement in
Support of Claim. VA will determine whether such relief is
warranted.\41\
---------------------------------------------------------------------------
\41\ VA, M21-1 Adjudication Procedures Manual, Part X, Subpart ii,
Chapter 6, Section D, Topic 4.b, December 28, 2022, https://
www.knowva.ebenefits.va.gov/system/templates/selfservice/va_ssnew/help/
customer/locale/en-US/portal/554400000001018/content/554400000177977/
M21-1-Part-X-Subpart-ii-Chapter-6-Section-D-Processing-Awards-to-
Incompetent-Beneficiaries#4.
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Appeals of Incompetency Determinations
Unless a court has found the beneficiary incompetent or a guardian
has been appointed for the beneficiary based on a court determination
of incompetency, the VA is required to notify the beneficiary of the
proposed incompetency determination and the right to have a hearing
before the VA before the decision is finalized in the same manner as
other adverse actions by the VA are subject to hearings.\42\ The
determination of the VA that a beneficiary is incompetent can be
appealed to the Board of Veterans Appeals, whose decisions are subject
to judicial review by the U.S. Court of Appeals for Veterans Claims.
The court's decisions may be appealed to the U.S. Court of Appeals for
the Federal Circuit.
---------------------------------------------------------------------------
\42\ 38 C.F.R. Sec. 3.353(e).
---------------------------------------------------------------------------
In FY 2022, VA data indicates there were 135 hearings on
incompetency determinations, 24 of which resulted in a finding of
competency.\43\
---------------------------------------------------------------------------
\43\ VA data provided to CRS by the House Committee on Veterans'
Affairs.
---------------------------------------------------------------------------
Recent Legislative Activity
Veterans 2nd Amendment Protection Act
In the 110th Congress, Senator Richard Burr first introduced the
Veterans 2nd Amendment Protection Act (S. 3167). This bill would have
provided that ``a veteran, surviving spouse, or child who is mentally
incapacitated, deemed mentally incompetent, or experiencing an extended
loss of consciousness shall not be considered adjudicated as a mental
defective'' for purposes of the GCA ``without the order or finding of a
judge, magistrate, or other judicial authority of competent
jurisdiction that such veteran, surviving spouse, or child is a danger
to him or herself or others.'' This legislation has been introduced in
each subsequent Congress through the 118th. In the 118th Congress, the
House bill was reported favorably by the House Committee on Veterans
Affairs but was not acted on by the full House.
Appropriations Restriction
In the 118th Congress, the Consolidated Appropriations Act, 2024
included language that mirrored the Veterans 2nd Amendment Protection
Act. Sec. 413 of Title IV of the act provides that:
None of the funds made available by this Act may be used by the
Secretary of Veterans Affairs under section 5502 of title 38,
United States Code, in any case arising out of the
administration by the Secretary of laws and benefits under such
title, to report a person who is deemed mentally incapacitated,
mentally incompetent, or to be experiencing an extended loss of
consciousness as a person who has been adjudicated as a mental
defective under subsection (d)(4) or (g)(4) of section 922 of
title 18, United States Code, without the order or finding of a
judge, magistrate, or other judicial authority of competent
jurisdiction that such person is a danger to himself or herself
or others.\44\
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\44\ P.L. 118-42, Title IV, Section 413.
This provision includes no language about removal of already-
reported parties that were deemed mentally incompetent and reported to
NICS under subsection (d)(4) or (g)(4) of section 18 U.S.C.
Sec. 922.\45\
---------------------------------------------------------------------------
\45\ This appropriations rider only affects NICS reporting and does
not affect the underlying legality of an individual with a VA
determination owning a firearm under Sec. 922 or the ATF regulation 27
C.F.R. 478.11
---------------------------------------------------------------------------
This provision was extended by the two continuing resolutions
enacted to provide appropriations for FY 2025 (P.L. 118-83 and P.L.
118-158) through March 14, 2025 at which point, absent the enactment of
additional legislation, the VA will be permitted to resume its policy
of reporting to NICS those persons it has determined to be mentally
incompetent, regardless of any judicial finding or determination if
they are danger to themselves or others.
______
Prepared Statement of James McCormick
Mr. Chairman, Mr. Ranking Member, and distinguished Members of the
Subcommittee, Thank you for the opportunity to present the stance as
Past National Commanders of the Military Order of the Purple Heart and
as a representative for MOPH on a pressing issue: the constitutional
violations embedded in the Veterans Affairs fiduciary program's process
of reporting veterans to the National Instant Criminal Background Check
System, or NICS.
The name itself is a mouthful--and the process is just as
convoluted. Let me paint a picture for you, and you can tell me if this
aligns with the Constitution's promise that ``the right of the people
to keep and bear Arms, shall not be infringed.''
But under the VA fiduciary program, a veteran may be considered
``mentally incompetent'' if they decide the veteran cannot manage their
financial benefits and have a disability, how is this determined to be
dangerous or criminal? This finding--made without judicial oversight--
results in the veteran being reported to the NICS data base. Here is
what that means:
Veterans in NICS are prohibited from owning or buying
firearms under federal law.
This determination is often made without a hearing,
without proper notice, and without the veteran understanding its impact
on their Second Amendment rights.
Financial incompetence does not necessarily mean the
veteran poses a danger to themselves or others--the standard typically
needed to limit gun rights.
In simple terms, a veteran can lose a constitutionally protected
right without due process, based solely on a bureaucratic decision
about their ability to ``balance the books.''
If we subjected private citizens to this process--where financial
decisions could strip away fundamental rights with or without appeal,
there would be national outrage.
Let's break down the constitutional violations:
First Amendment: Veterans who fear being flagged in NICS
may avoid seeking VA benefits or mental health treatment, creating
obstacles to their right to petition the government or freely
associate.
Second Amendment: Veterans are unjustly stripped of their
gun rights without individualized assessments or evidence of
dangerousness.
Fourth Amendment: Reporting veterans without proper
judicial oversight, sharing confidential information violates their
privacy and protection against unreasonable searches.
Fifth Amendment: Veterans lose their rights without due
process.
Fourteenth Amendment: Veterans are treated unequally
compared to non-veterans, deprived of equal protection and fundamental
fairness.
The impact of these violations goes beyond legal arguments, it
erodes trust and is a dangerous process that is NOT helping our
veterans or rigorously evaluating them as you would any citizen without
a DD214.
Even more troubling, this adds to the stigma many veterans already
face. It discourages them from seeking help. For a veteran, this can be
devastating, contributing to the alarming suicide rates among our
veterans. This is pushing veterans to NOT seek mental health services
out of fear of losing their rights as citizens, the fact this process
has gone on for decades and we see no reduction in suicides related to
the fiduciary program, says a great deal for its lack of effectiveness.
Suicide is a national epidemic, Mr. Chairman. Why should only
veterans be punished for that? Are we simply used as some sub-standard
group of citizens to test elements of social change without our
consent. I am not pushing some conspiracy theory - merely saying that
we treat our veterans differently than everyday citizens - we are
willing to take away their rights and allow malicious attacks against
their service without due process and that is not right.
Mr. Chairman, Mr. Ranking Member, and Members of the Subcommittee,
this program not only violates the Constitution, it undermines the
values we claim to uphold as a nation. Where I am from, we would say,
``that dog don't hunt.'' My family lineage goes back to Charles
Washington the brother of our first President George Washington, that
is well known and easy to confirm but let us start with this. My
grandfather served in WWII, wounded in a bombing mission over Europe,
His brother was KIA in Korea, My Dad was wounded in Vietnam passing
away at 52 from Cancer related to Agent Orange Exposure, I served in
Desert Storm and Iraqi Freedom wounded in combat multiple times,
awarded the Silver Star and 3 Bronze Stars for Valor, my wife and I
recently gave you two of our sons who served overseas in combat
operations. What more does my family, or any veteran must give to
simply get the same due process and fairness as every other citizen
gets who does not serve?
I urge this committee to act swiftly to address these violations
and restore trust in the system for those who have served. Finally: To
my fellow veterans Do not let the current process keep you from seeking
help, Vietnam Veterans of America, and Military Order of the Purple
Heart-are going to make sure your rights, respect and fairness are not
violated, so please not let the bureaucracy or fear of religion drive
you from seeking help or earned benefits.
If you or a veteran you know is in crisis, please reach out. Help
is available 24/7 Call 988 and press 1, text 838255.
Thank you for your time and consideration, I look forward to your
questions.
______
Prepared Statement of Wayne Reynolds
Mr. Chairman, Mr. Ranking Member, and distinguished Members of the
Subcommittee,
Thank you for the opportunity to testify today on behalf of Vietnam
Veterans of America (VVA). My name is Dr. Wayne Reynolds, and I am the
Treasurer of the VVA. I am also a Vietnam veteran, a lifelong advocate
for veterans' rights, and a proud American who believes deeply in the
values of our Constitution.
Today, I bring to you not only my professional expertise but also
my personal story--a story shared by thousands of my fellow veterans--
to shed light on the injustices perpetuated by the VA fiduciary program
and its unconstitutional impact on veterans' lives.
Specifically, I want to highlight the program's flawed practice of
linking financial incompetency with dangerousness and the devastating
consequences this can have on veterans' rights, livelihoods, and
dignity.
Financial Incompetency Does Not Equal Dangerousness
Under the VA fiduciary program, a veteran may be deemed ``mentally
incompetent'' if the VA determines they cannot manage their financial
benefits.
This determination--often made without judicial oversight--triggers
an automatic reporting of the veteran to the National Instant Criminal
Background Check System (NICS), barring them from purchasing or owning
firearms. The justification is that financial incompetency equates to
dangerousness. But where is the proof?
I've spent decades working in education and finance. As a
professional in these fields, I can unequivocally say that financial
struggles or mismanagement do not correlate with a propensity for
violence or dangerous behavior.
Financial incompetency is a bureaucratic judgment, not a
psychological diagnosis. And yet, veterans subjected to this program
are stripped of their Second Amendment rights without any evidence that
they pose a threat to themselves or others.
This is not only unfair; it is unconstitutional.
A Personal Perspective: The Consequences of Unjust Policies
Allow me to speak from my own experience as a 78-year-old Vietnam
veteran. When I returned from Vietnam, I was like many of my brothers
and sisters in arms: struggling with the invisible scars of war,
grappling with PTSD, and trying to find my footing in a society that
did not yet understand the complexities of mental health in veterans.
On top of that, I faced significant financial challenges. I had
little to no savings, and my job prospects were uncertain.
Had the VA fiduciary program's standards been applied to me at that
time, I could have been deemed financially incompetent. My PTSD and
limited finances might have been used as grounds to report me to NICS,
branding me as a potential danger and barring me from certain
opportunities.
This designation would have devastated my career path.
You see, my life's work has been in education and finance--fields
that require extensive background checks. If I had been reported to
NICS, I likely would have been disqualified from working in those
fields.
The unjust stigma attached to being labeled ``mentally
incompetent'' would have overshadowed my capabilities and aspirations.
My contributions to society--as an educator, as a financial
professional, and as a leader within the VVA--might never have come to
fruition.
But more than that, this process would have stripped me of my
dignity. Like so many veterans, I took an oath to serve and protect
this nation. To come home and have my rights stripped away by a
faceless bureaucracy would have been a betrayal of the values I fought
to defend.
The Fiduciary Program's Constitutional Violations
The VA fiduciary program is rife with constitutional violations:
Second Amendment: Veterans are unjustly stripped of their
right to bear arms based on financial assessments, not evidence of
dangerousness.
Fifth Amendment: Veterans lose their rights without due
process. They are not given proper notice, hearings, or appeals before
being reported to NICS.
Fourteenth Amendment: Veterans are treated unequally
compared to non-veterans, deprived of equal protection and fundamental
fairness.
These violations are not just legal abstractions; they have real
and devastating consequences. They undermine trust in the VA,
discourage veterans from seeking help, and perpetuate the stigma
surrounding mental health and financial struggles.
A Call to Action
Mr. Chairman, Mr. Ranking Member, and Members of the Subcommittee,
I urge you to act swiftly to reform the VA fiduciary program. We must
ensure that no veteran loses their rights without due process, and we
must decouple financial incompetency from dangerousness.
Veterans who have served this Nation with honor deserve better than
to be subjected to unconstitutional and dehumanizing policies.
I close with a simple question: If we do not stand up for the
rights of those who stood up for us, what does that say about us as a
nation?
Thank you for your time and attention. I look forward to your
questions.
______
Prepared Statement of Nancy Springer
Chairman Luttrell, Ranking Member McGarvey, and members of the
subcommittee, on behalf of the men and women of the Veterans of Foreign
Wars of the United States (VFW) and its Auxiliary, thank you for the
opportunity to provide testimony regarding this important topic.
The VFW strongly supports protecting the Second Amendment rights of
veterans who have fiduciaries assigned by the Department of Veterans
Affairs (VA), and ensuring they are not unfairly referred to the
National Instant Criminal Background Check System (NICS) without a due
process judicial review.
However, underneath this constitutional rights issue lays a process
that stakeholders could substantially improve. Conversation with an
individual who is a former VA field examiner and current VFW member
yielded several actionable suggestions for process improvement based on
her experiences. Accordingly, the VFW offers the following
recommendations:
1) After initial diagnosis, require a second medical
examination to confirm or refute the veteran's competency and
assess propensity for causing harm. Not being able to manage
one's finances does not necessarily imply a veteran is a danger
to self or others, or could not responsibly own and use
firearms;
2) Require VA field examiners to operate in two-person teams
while conducting interviews in person. To conduct an effective
interview, the VA field examiner must meet the veteran in his
or her environment. Our VFW comrade informed us that the
meeting place could range from a veteran's job site to a home;
however, the homes she visited included homeless tent
encampments and ``skid row'' areas of dubious safety. The team
construct would enhance the examiners' personal security and
encourage in-person interviews in the veteran's environment,
aiding the examiners in more accurately assessing well-being
and mental health status;
3) Reassess all fiduciary assignments made during the COVID-19
pandemic timeframe. Our VFW comrade informed us that the VA
field examiners routinely conducted virtual interviews during
that time. While understandable during a public health
emergency, a virtual interview made it more difficult, if not
impossible, to detect vital verbal and non-verbal cues
indicative of either a mental health ailment or other situation
that could contribute to a veteran endangering self or others
due to the irresponsible use of firearms;
4) Revise VA letters that inform veterans they require a
fiduciary to simply and comprehensively explain the
significance of this status and the veteran's appeal rights.
Also, VA must send letters in a timely manner so veterans
receive initial notification prior to a field interview. Our
VFW comrade informed us that she was often the first one to
inform the veteran of the relationship between fiduciary
assignment, NICS referral, and the resulting prohibition
against firearm ownership and purchase. Some veterans reacted
angrily when they realized the loss of their Second Amendment
rights. In one case, a veteran placed a firearm on the table
between them during the interview in an attempt to intimidate
the VA field examiner, thus putting her in a potentially
dangerous situation while merely doing her job; and
5) Require a judicial review prior to NICS referral to
guarantee due process before infringing on veterans' Second
Amendment rights.
Background
VA administers a fiduciary program for veterans who cannot manage
their VA benefits for several reasons. One cause is mental
incompetence, which is defined in 38 CFR 3.353 as, ``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 affairs.'' VA
bases its incompetency determinations on medical documentation from a
variety of sources, such as a medical provider who conducted a routine,
incidental medical or mental health examination; a compensation and
pension medical examiner in the course of a veteran's application for
VA disability compensation; or another VA official who determines that
the veteran is incompetent and requires a fiduciary. After initial
determination, VA will inform the veteran of its proposed finding of
incompetency and initiate the fiduciary assignment process. As part of
that process, a VA field examiner will interview the veteran to assist
in assigning an appropriate fiduciary. Currently, VA does not order any
additional medical or mental health examinations to determine the
veteran's propensity for self-harm or harm to others.
Both the Gun Control Act of 1968 (Public Law 90-618) and the Brady
Handgun Violence Prevention Act (Public Law 103-159) prohibit a person
``adjudicated as a mental defective or who has been committed to a
mental institution'' from possessing or purchasing a firearm, though
neither law defines ``adjudicated as a mental defective.'' However, in
its 1997 rulemaking to implement the Brady Act, the Bureau of Alcohol,
Tobacco, Firearms and Explosives (ATF) clarified that adjudicated as a
mental defective occurs ``if a court, board, commission or other lawful
authority has made a determination that a person, as a result of marked
subnormal intelligence, mental illness, incompetency, condition or
disease is a danger to himself or others; lacks the mental capacity to
contract or manage his own affairs; is found insane by a court in a
criminal case; or is found incompetent to stand trial.'' In its
comments pertaining to this rulemaking, VA interpreted ``adjudicated as
a mental defective'' as a veteran that VA would assess as incompetent
under 38 CFR 3.353. This regulation states that a mentally incompetent
person is one who, because of injury or disease, lacks the mental
capacity to contract or manage his or her own affairs. ATF agreed with
VA's interpretation and commented that the inclusion of the term
``mentally incompetent'' in the definition of ``mental defective'' is
consistent with the legislative history of the Gun Control Act.
The Brady Act also mandated the creation of the NICS--a name check
system managed by the Federal Bureau of Investigation (FBI) that
licensed firearms dealers use to confirm a prospective firearms buyer's
qualifications to purchase firearms or ammunition. In compliance with
the Brady Act, VA refers the names of veterans with fiduciaries to NICS
since VA categorizes these veterans as mentally incompetent. As
previously stated, VA requires neither additional medical examinations
nor a judicial review to determine the veteran's propensity to harm
self or others prior to NICS referral. Veterans may appeal VA's
decision, though few actually do for undetermined reasons. Of note,
according to a July 2023 Congressional Research Service report titled
Gun Control, Veterans' Benefits, and Mental Incompetency
Determinations, of the 135 appeals filed in fiscal year 2022, VA data
indicate only 24 successful appeals. Our VFW comrade's personal
experience corroborates this statistic. Because of her diligence and
experience with the appeal process, she successfully halted referral to
NICS for some veterans she assisted. However, none of them successfully
appealed their NICS referrals.
In accordance with the NICS Improvement Amendments Act of 2007
(Public Law 110-180) all federal agencies that hold records on people
prohibited from possessing or purchasing firearms must refer these
records to the FBI for inclusion in NICS. Some of these prohibitions
are based upon findings of ``mental incompetency'' made during certain
federal benefit claims processes. For instance, in December 2016, the
Social Security Administration (SSA) published its final rule to
implement applicable provisions of the law. Under this rule, SSA would
refer to NICS its disability beneficiaries for whom it appointed a
``representative payee'' to manage day-to-day affairs and whose
disability could be tied to a mental impairment. However, in February
2017, the House of Representatives passed a Congressional Review Act
disapproval resolution that was signed by President Trump overturning
this rule.
Currently, VA is the only federal department that makes substantial
NICS referrals, though other agencies provide similar disability and
other financial benefits. In this context, veterans could consider that
existing VA procedures are both inappropriate and contradictory to the
law.
Veterans deserve due process when it comes to the potential removal
of their constitutional rights.
Conclusion
Because of the somewhat subjective VA incompetency determination
process and related loss of Second Amendment rights, some veterans
refuse to use VA health care for fear of inadvertently making a
disqualifying statement or disclosing a temporary disabling condition
that could lead to NICS referral. This stigma unnecessarily deprives
veterans of their earned benefits and could compromise their physical
and mental health. However, a process that includes additional medical
screening and a judicial review prior to NICS assignment could assure
veterans of unconditional medical and mental health care without
jeopardizing their constitutional rights.
Chairman Luttrell and Ranking Member McGarvey, this concludes my
testimony. I am prepared to take any questions you or members of the
subcommittee may have.
Information Required by Rule XI2(g)(4) of the House of Representatives
Pursuant to Rule XI2(g)(4) of the House of Representatives, the VFW
has not received any federal grants in Fiscal Year 2025, nor has it
received any federal grants in the two previous Fiscal Years.
The VFW has not received payments or contracts from any foreign
governments in the current year or preceding two calendar years.
______
Prepared Statement of Michael Washington
Good afternoon, Chairman Luttrell, Ranking Member McGarvey, and
Members of this Subcommittee. Thank you for the opportunity to share my
story with you this afternoon.
My name is Master Sergeant Michael Washington, U.S. Marine Corps,
retired. I am proud to be a veteran. I served as an infantry platoon
sergeant and counterintelligence agent for a combined 23 years in
active duty and reserve service. I led an infantry platoon in combat
during Operation Desert Storm and I also served deployments in Bosnia,
Afghanistan, Iraq, and Africa. And, for the last three decades, in my
civilian life, I have been a firefighter, including 25 years with the
Seattle Fire Department. After obtaining a master's in social work, I
now work as a mental health counselor specializing in veterans and
first responders--many of whom are also veterans.
On June 14, 2008, I learned that my son, Sergeant Michael
Washington--who had followed me into the Marine Corps just as I had
followed my own father--had been killed in combat in Afghanistan while
serving with the 2nd Battalion, 7th Marine Regiment. Despite the severe
casualties taken during their deployment, the 2-7 has lost more Marines
here at home to suicide than on the battlefield.
When my son was killed, my world stopped. I didn't know how to cope
with the news, let alone feel the loss. I tried to keep it together and
follow the example that had been set for me: drinking instead of
talking.
From there, my own PTSD from my deployments began to surface and my
marriage began to fall apart. When the pain became too much, I began to
think about killing myself. At first, that meant riding my motorcycle
through red lights. But I didn't want another first responder to have
to pick me up off the street. Eventually, I found myself on a bridge.
On the edge of that bridge, with my eyes closed, waiting for a
final feeling that would push me forward, I heard my son's voice. He
said to me: Your story doesn't end here. You have work to do. Don't do
this, Dad. This is not how it ends.
That was all I needed to go home, start to open up to others, seek
mental health assistance from the Department of Veterans Affairs (VA),
and head down a path that helped me get better. But if I'd had easy
access to a gun, I wouldn't have ever had that chance.
I wouldn't have gotten better. I wouldn't have remarried or gotten
to spend time with my grandchildren. I also wouldn't be able to be here
with you today. And I wouldn't be able to do the work I do now to help
others get better--work that I do to honor and in memory of my son.
I am testifying here today on behalf of the Everytown Veterans
Advisory Council. We are a group of military veterans that advocate for
responsible gun ownership and gun safety in order to prevent gun
violence and save lives. Today, the Veterans Advisory Council is made
up of 40 veterans from across the Nation. I appreciate the chance to
testify at this hearing and to provide important context for the
Subcommittee when it comes to veterans, firearms, and mental health.
The crisis of veteran suicide deaths.
No one is immune to gun violence, including veterans. As veterans,
we know that all too well--because our Nation is experiencing an
epidemic of veteran suicides, and most of these suicides involve
firearms. In 2022, there were 6,407 veteran suicide deaths--an average
of more than 17 per day. Guns were used in 73.5 percent of those
deaths--a proportion that increases year after year.\1\ According to
the VA, at least 1,548 of those veterans who died by suicide in 2022
had been diagnosed by the VA with a mental health or substance abuse
disorder, and that number is likely an undercount.\2\
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\1\ U.S. Department of Veterans Affairs, ``2024 National Veteran
Suicide Prevention Annual Report, Part 2 of 2: Report Findings,'' at p.
4 (Dec. 2024), available at https://www.mentalhealth.va.gov/docs/data-
sheets/2024/2024-Annual-Report-Part-2-of-2_508.pdf.
\2\ Id. at p. 33, Table 6. This is the number the VA reported of
veterans who died by suicide in 2022 who had received health care at a
Veterans Health Administration (VHA) facility in 2022 or 2021 and who
had been diagnosed by the VHA with mental health or substance use
disorders. The number does not include veterans who may have been
diagnosed with mental health or substance use disorders but who did not
receive care at a VHA facility in either 2022 or 2021.
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Every suicide death of a veteran who served and sacrificed for the
United States is a tragedy, and the loss of 17 veterans a day to
suicide should be an urgent call to action. We should be doing
everything in our power to stop this epidemic, and that means we must
do something about access to firearms in moments of crisis. This is the
most important investment we can make, because every dollar spent on
mental health services, peer-to-peer support, and substance abuse
counseling is moot if a veteran in crisis has attempted suicide with a
firearm.
Access interventions for preventing gun suicide: background checks.
The background check system is the best tool we have to prevent
access to a firearm--blocking gun sales from licensed dealers to
individuals who are not allowed under the law to have firearms in the
first place. But the background check system is only as strong as the
information it contains, and if information is left out, those who
can't have guns are able to pass a background check and purchase a
firearm.
For 30 years, until last March, the VA had provided information on
certain veterans who are legally barred from having guns to the FBI's
National Instant Criminal Background Check System (NICS) under
longstanding federal law and with strong due process protections in
place. These are veterans who the VA has determined are ``mentally
incompetent''--not solely because the VA may appoint a fiduciary to
manage their benefits, as some have suggested, but ``because of injury
or disease.'' These injuries and diseases include diagnoses for major
depressive disorder, panic disorder, schizophrenia, bipolar disorder,
and more. As Congress has required, these veterans go through a
comprehensive process that provides them with many due process
safeguards: notice and the right to a hearing, the right to present
evidence and witness, and the right to have legal representation, as
well as a high standard of proof. For any veteran who contests the VA's
determination, he or she has the right to appeal any decision through
both the VA and the courts.
Since last year, however, it's no longer enough that the VA makes a
determination that a veteran is mentally incompetent due to a serious
mental disorder for the VA to alert the background checks system. As of
March 2024, Congress has temporarily blocked the VA from alerting NICS
unless the VA takes the additional step of confirming that a court has
also found that such a veteran is a danger to themselves or others. But
Congress didn't give the VA any funding, resources, guidance, or even
time to set up a process to do so. As a result, since last March there
has been a growing number of veterans with serious diagnosed mental
disorders who NICS has not been alerted about--and this is the exact
cohort of veterans who are at increased risk of suicide. In other
words, the VA and veterans are now down a critical tool to help reduce
suicide deaths due to Congress' decision to change how, and under what
circumstances, the VA is allowed to provide information to NICS.
Congress made this change even though the VA's existing system
already had many due process safeguards and even though that
information sharing has long been important for suicide prevention
efforts. Congress should look at the effect this change is having on
the risk of veteran suicide--before Congress decides whether to
continue it at all, and certainly before Congress makes it permanent or
seeks to expand it. And if Congress is going to continue to restrict
the VA from providing this information to NICS without an additional
step of court review, then Congress and the VA must figure out how to
make sure this additional step is taking place--every single time these
mental incompetency determinations are being made, as a matter of
routine process.
That will take time and resources, but you have to do it. Because
turning a blind eye and requiring the background check system to ignore
what the VA knows about veterans with serious mental health diagnoses
is undermining our collective efforts to reduce veteran suicide deaths.
I worry that may already be happening since the change Congress made
last March, and I hope this Subcommittee can quickly get the data to
find out if that's the case.
Other access interventions: a continuum.
In addition to background checks, there are other practical and
proven interventions that can prevent firearm suicide. Like the
continuum of force I followed in the military, we can think of these
interventions on a continuum of intervention.
The continuum of intervention, which is set in motion by asking
whether someone in crisis has access to a firearm, has five steps of
escalating action:
Step One: Firearms should be stored unloaded, separate from
ammunition, and locked in a gun safe, lockbox, or some other device.
This is a cornerstone of responsible gun ownership--whether someone is,
for example, a veteran or a parent or a hunter. Secure firearm storage
creates time and space between someone in crisis and a firearm, and
this time and space can be enough to get help.
Step Two: When guns are stored in a secure storage device, someone
in crisis can ``give the keys'' to that device to a family member or
friend or even another veteran. This creates even more time and space
between someone in crisis and a firearm by temporarily limiting access
without removing ownership of the firearms.
Like ``giving the keys,'' in Step Three, gun owners can--
voluntarily--store their firearms outside their homes at, for instance,
a gun dealer or even with an eligible family member. Several states and
localities have developed gun storage maps to help increase public
awareness of out-of-home storage options. Then, when the crisis has
passed, the gun owner can regain possession of their firearms.
Step Four can be taken in states that allow individuals who know
they are at risk for suicide are empowered to add themselves
voluntarily and confidentially to a ``do-not-sell'' list. At present,
these states include Utah, Washington, Virginia, and Delaware. Such a
list prevents them from being allowed to purchase a gun in the future.
And when the person is no longer at risk or is no longer in crisis,
they can take themselves off the list. This step allows individuals to
exercise personal freedom to keep themselves safe and alive.
Finally, Step Five is available in the 21 states--red, purple, and
blue--and Washington DC that have enacted Extreme Risk laws. These laws
allow certain individuals to petition a court to issue an order, on the
basis of evidence and with other strong due process protections in
place, that temporarily removes firearms from someone who is determined
to be a danger to themselves or others. Law enforcement is the common
petitioner in all 22 jurisdictions, but many allow others who may be
the first to recognize that someone is in crisis, like immediate family
members and medical professionals, to do so as well.
Conclusion.
Veteran suicide is a public health issue--not a political one. I
know both parties understand that. President Trump, in his first term,
and President Biden both took steps to help reduce veteran suicide,
including firearm suicides. It's more important now than ever that we
continue to do this work, and to do it together.
Thank you again for the chance to speak with you this afternoon,
and I look forward to your questions.
Statements for the Record
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Prepared Statement of The American Legion
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Prepared Statement of GIFFORDS Courage to Fight Gun Violence and Brady
United Against Gun Violence
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Prepared Statement of National Association of County Veterans Service
Officers
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Questions for the Record Submitted by Aumua Amata Coleman Radewagen
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Response to Questions for the Record Submitted by Aumua Amata Coleman
Radewagen
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
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