The first American soldiers were formed in 1775 as the Continental Army  for the new America, led by George Washington as commander in chief.

Not until this past summer of 2009, 234 years later, has that same America finally recognized that its own wounded soldiers are entitled to due process rights under the Constitution of the United States.

Phillip Cushman was a US Marine who was injured in the Vietnam War.  In 1974, 25 years ago, Mr. Cushman began the long process to claim his VA disability compensation. 

After years and decades of bureaucratic delays and denials by the VA, Mr. Cushman discovered that the VA was actually keeping two versions of his medical records.  Upon further inquiry, the VA conducted an investigation that confirmed that Mr. Cushman's medical records had been altered. 

The VA however was unable "to arrive at a reasonable explanation" for the two different records and as to why the original records had now disappeared. 

Upon further appeals to federal court, the 9^th Circuit Court of Appeals found that Mr. Cushman's military medical records had been "fraudulently altered" and ordered the VA to review his file to determine if Mr. Cushman was entitled to additional military compensation benefits.

During the course of his appeals, Mr. Cushman, as a US Marine veteran argued that he was entitled to a "constitutional right to a fundamentally fair adjudication of his claim."

The United States Court of Appeals for the Federal Circuit admitted that this issue of a veteran's claim to a  "right to due process" was a case of first impression, never argued before the Court.

Incredibly (or not), the Veterans Administration for the United States argued that Mr. Cushman, an injured United States Marine seeking compensation for his wartime injuries,  had no constitutional protections in his claim and the altered medical records in the VA file were not prejudicial nor a violation of any of his rights.

The Federal Circuit (finally) disagreed.  The Court then went on to find that as a military veteran, Mr. Cushman's VA disability benefits are indeed a "protected property interest and may not be discontinued without due process of law."  The Court then found that the VA's consideration of the altered medical records in adjudicating Mr.Cushman's disability claim was a "violation of his constitutional right to a fair hearing" and that US military veterans do indeed have a constitutional right of due process to have their VA disability claims decided in a fair manner.  Click here to read this case.

It only took the United States 234 years to recognize this basic right for its own military veterans.

Special thanks to Kevin A. Calia, Morrison & Foerster LLP, of San Francisco, California, who argued for claimant-appellant; Mr. Cushman.