What Is a Military Letter of Reprimand?

A military letter of reprimand (LOR) is an administrative censure given to a servicemember for alleged failure to comply with military rules or regulations. A letter of reprimand is a serious matter, and servicemembers subject to receiving one should carefully consider their options. A letter of reprimand is important because this letter might stay in a servicemember’s file and impact the ability of that servicemember to be promoted, selected for new training and assignments, or lead to administrative discharge in some circumstances.  Any servicemember that is committed to the military as a career could find an LOR in their record to be seriously problematic.

Letters of reprimand are often issued by General Officers and may sometimes be referred to by the acronym ‘GOMOR’ for General Officer Memorandum of Reprimand.

Service Regulations

In the Army, letters of reprimand are governed by Army Regulation 600-37. In the Air Force, letters of reprimand are governed by AFI 36-2907. The Navy and Marine Corps use nonpunitive letters of concern and letters of instruction. More information regarding these may be found in the Rules for Courts Martial (R.C.M. 306) and JAGMAN (Chapter 1).

The Army GOMOR Process

For this article, I will use the Army structure to describe the LOR process. The same principles generally apply across each branch of service, even though the details of how each service implements them does vary. Therefore, a savvy servicemember dealing with a letter of reprimand should carefully read the letter, review the service regulation that governs the letter, and consult with an experienced military law attorney.

According to AR 600-37, a letter of reprimand may be filed locally or filed in the performance portion of the soldier’s permanent Army Military Human Resource Record. If the reprimand is filed locally, it will remain for up to three years or until the soldier is reassigned to a new command, whichever occurs sooner.

Upon receiving an LOR, the first step is for the soldier to carefully read the letter. The letter will state the deadline for the soldier to respond, which is often 7-10 days from receipt. The soldier’s response is critical, because the Commander that issued the letter can still decide at this point not to file the letter or place the letter in the local file.

The soldier’s statement should address the underlying facts and argue for a particular filing determination. If the letter is permanently filed, the soldier’s statement will be included.

LOR Response Strategies

The primary strategies for a soldier’s response are to deny the allegations, explain in a different way what happened, or mitigate the concerns in the LOR.

• Deny the allegations. Denying the allegations shows that the allegations are factually not true. This may include witness statements and other documentary proof such as emails, text messages, photographs, etc.
• Explain in a different way what happened. Here the soldier is not admitting to the conduct as characterized, but also not denying there is any validity to what occurred. This may include supporting evidence as well.
• Mitigate concerns in the LOR. This entails the soldier admitting to having violated a rule, regulation, or order, apologizing for the violation, and asking for a second chance. It would be wise for the soldier to include acceptance of resulting punishment and indicate that the soldier has already begun remedial measures to address the issue.

In all those strategies, the soldier should consider including favorable information, such as copies of good evaluation ratings, sworn letters attesting to the character and performance of the soldier, and awards previously received.

When drafting a response to an LOR, the soldier should write the statement in memorandum format. It would be wise to work with a team to edit and refine the statement prior to submitting.

After an LOR has been filed-Appeal Options

There is no formal process to seek removal of an LOR from the local file. However, a soldier may request removal by the Commander that issued it with an appeal in memorandum format through the chain of command.

If an LOR has been permanently filed, a soldier may seek removal to the restricted portion of the OMPF through the procedures described in AR 600-37. Unfortunately, for a soldier considering an appeal, this is not easy to accomplish. Once an LOR has been permanently filed, the Army presumes it is administratively correct. The soldier is required to prove by clear and convincing evidence that the allegations are untrue or unjust thereby warranting removal.

Conclusion

If you are a servicemember dealing with a letter of reprimand, I encourage you to leverage the information provided in this article and reach out to a Nashville military law attorney to explore your best strategy today. Our team of military law attorneys at Cole Law Group are ready to assist. Contact us at 615-490-6020.

Service members that are in the process of determining if they are fit to return to duty or should be medically separated or discharged from the military due to their illnesses or injuries participate in the Integrated Disability Evaluation System (IDES). The military calls it integrated because this process is done in conjunction with the federal department of Veterans Affairs to also determine the servicemembers entitlement to VA disability at the same time as determining the servicemember’s entitlement (if any) to military disability for retirement purposes. More information regarding the IDES is located on the VA website here, and the health.mil website here.

The possible outcomes from IDES for the military are:

1. Finding the Servicemember is fit for duty and is returned to duty. There is therefore no medical separation or retirement for the servicemeber. Presumably the servicemember will continue his military service until later separated or retired.
2. The servicemember is found unfit and determined to be 10% or 20% disabled. In this event, the servicemember will be medically discharged but not retired. The servicemember is entitled to a one time severance payment, but not a medical retirement pension.
3. The servicemember is found unfit and determined to be 30% or more disabled by the service. In this case the servicemember is medically retired and entitled to a military retirement pension for life. This pension should be effective immediately. The servicemember should also be entitled to other benefits of military retirees and free healthcare for the rest of her life.

Download the chart here to view in full-screen: IDES Slide to add to blog post

Using a hypothetical military servicemember as an example, the disability evaluation system is like this:

Hypothetical Navy Chief Petty Officer George Washington is in the active duty US Navy. He is assigned to duty on an Aircraft Carrier. While engaged in the course of his duties on the ship, Washington is carrying heavy equipment up a flight of stairs with other servicemembers. Unfortunately, Washington loses his balance near the top of the stairs and falls severely injuring his back and also injuring his left knee. Washington is treated on the ship after the injury occurred. Washington is transported to a hospital and has surgery on his back, yet he suffered a lumbosacral strain and bulging discs that cannot be completely repaired. Washington’s command referred him to the IDES system to determine if he is fit for duty or should be medically separated.

Washington’s IDES process begins with Washington receiving a briefing about the IDES system and he meets with his assigned Physical Evaluation Board Liaison Officer (PEBLO). The PEBLO provides more information that Washington may reference regarding the process. The Medical Evaluation Board (“MEB”) is the stage in the process where the military will determine what conditions if any fail to meet retention standards. Each service has their own regulation regarding retention standards. The MEB determined that Washington’s lumbosacral strain and bulging discs each fail to meet retention standards, but his left knee does not fail to meet retention standards. The MEB records their proceedings on DA form 3947. The MEB referred Washington to a Physical Evaluation Board (“PEB”). The PEB determined that Washington’s lumbosacral strain entitled him to 10% disability from the Navy. The VA determined this as 20% disability. Washington’s bulging discs entitled him to 10% disability from the Navy. The VA rated them as 20% disability. The PEB was not able to rate Washington’s left knee as that did not fail to meet retention standards. The VA gave Washington 10% disability for his left knee.

Under this hypothetical, Washington will be medically separated from the Navy, not medically retired. This is because his military disability percentage is calculated at 20% instead of the 50% calculation used by the VA. Washington will receive a severance payment but not full medical retirement.

How can a Private Attorney help in the IDES process?

A private attorney may assist a client at all stages of the IDES process from inception of the case through actions such as ensuring the client gathers and includes all relevant military medical documentation, requesting an Impartial Medical Review (“IMR”) with a memorandum specifying why an impartial medical review is required. A private attorney may also assist a client with submitting a written rebuttal to the MEB after the IMR. After the MEB process is complete, the case is transitioned to the Physical Evaluation Board (“PEB”) for further processing which will include a proposed rating. The servicemember will be notified of the PEB results. The servicemember may formally appeal the PEB decision through a IPEB rebuttal. Assuming the servicemeber is being medically separated or retired from the military, the servicemember will then start the separation process. After separation, the servicemember should receive the final rating from the VA with the final VA disability rating. The servicemember may appeal the final VA rating within one year.

Military servicemembers that have already been separated may also work with private attorneys in some cases. I have successfully represented clients before the Physical Disability Board of Review (“PDBR”), Board for corrections of Military Records, and Board for corrections of Naval Records.

Successful Military Medical Retirement Case Example

In one case I am particularly proud of, I successfully achieved a military medical separation for my client who was medically discharged from the U.S. Air Force in 2003 with 20% disability. We originally applied to the PDBR arguing that he should have been found 40% disabled when retired. We were upset that the application was not approved because we felt that it was strongly supported by documentary evidence. There are no rights to appeal from the PDBR so we revised the application slightly and sent it to the Air Force Board for Corrections of Military Records. We were pleasantly surprised that the AFBCMR agreed with our argument and awarded the client a full military medical retirement backdated to 2003. The client and I were both thrilled that he is now considered medically retired. The client is now awaiting six years of backpay military retirement benefits and future military medical retirement pension.

If you are a current or former military service member dealing with military medical retirement issues and could use a helping hand, call our office today to set up a consultation with one of our military law attorneys to explore your options. Let us help you navigate, litigation, and resolve your military medical retirement case.

One topic in military law important to many veterans is Veterans Affairs (VA) disability. Federal law established the US Department of Veterans Affairs with several important missions to serve our veterans.^[i] One of those missions is to provide disability benefits to eligible veterans who are disabled due to injuries or illnesses that have been caused by or made worse through the veteran’s military service.^[ii]

What Is VA Disability Compensation?

The VA defines disability compensation as “a tax free monetary benefit paid to Veterans with disabilities that are the result of a disease or injury incurred or aggravated during active military service. Compensation may also be paid for post-service disabilities that are considered related or secondary to disabilities occurring in service and for disabilities presumed to be related to circumstances of military service, even though they may arise after service.”^[iii] The VA also provides additional compensation benefits such as dependency and indemnity compensation, special monthly compensation, adapted housing grants, service-disabled veterans’ insurance, and veterans’ mortgage life insurance.

How Do I Begin the VA Disability Process?

The first step in the VA disability process is to find out if you are eligible. This may be more complex than it sounds due to the myriad of rules that apply. For example, if you are a veteran who received an other than honorable discharge, bad conduct discharge, or dishonorable discharge, you are not eligible for VA disability benefits.^[iv] (In that case, you might consider applying for a discharge upgrade, and if granted, you may then be eligible)^[v]  Another common issue that could arise is whether you were on an active duty or training status at the origination of the injury or illness. The simplest way to determine your eligibility is to review the information on the VA website to see if you meet the criteria.^[vi]

Who Determines If I Am Eligible For Disability Benefits?

Applicants apply to the VA for a disability determination. The VA will then review the application. Once the VA has made their decision, they will mail a disability claim decision letter to the applicant.^[vii] This is not the end of the process as the applicant may submit additional evidence, submit a new request for disability later, or may appeal the VA’s determination. Appeals go to the Board of Veterans Appeals and then the US Court of Appeals for Veterans’ Claims.^[viii]

How Much Will I Be Awarded For My Injury?

The VA awards disability ratings for each service-connected illness or injury from 0% to 100%. 100% means that the veteran is completely and totally disabled based on the illness or injury and is therefore unable to work. 0% means the VA has determined this injury or illness does not cause problems for the applicant that would prevent the applicant from being able to work. The percentage awarded for each injury or illness is based on the percentage range for that injury or illness in the federal code of regulation that defines that specific injury or illness.^[ix] The VA uses a 4 digit diagnostic code to categorize every injury or illness.

It is easy to determine the correct percentage of some injuries as they are clearly specified in the CFR. The following are examples:

• Tinnitus, recurrent code 6260: The VA awards 10% disability for tinnitus, “whether the sound is perceived in one ear, both ears, or in the head.”^[x] Although this example could be made more complicated if combined with another hearing loss evaluation.
• Cartilage, semilunar, removal of, symptomatic 5259: 10%.^[xi]

Other injuries have a wide range of possible disability percentages and may require persuasive arguments supported by medical records on behalf of the applicant. Examples of these include:

• Sinusitis, sephenoid, chronic 6514: ranges from a rating of 0%, 10%, 30%, or 50%.^[xii]
• Fibromyalgia 5025: ranges from 10%, 20% or 40%.^[xiii]
• Ankle, limited motion of 5271: moderate=10% marked=20%.^[xiv]
• Open-angle glaucoma 6013: “Evaluate under the General Rating Formula for Diseases of the Eye. Minimum evaluation if continuous medication is required 10%”^[xv]

What If I Suffer From Multiple Disabilities Related to Military Service?

When a veteran has multiple disabilities, they must be combined into the combined disability rating. This rating is in increments of the nearest 10% from 0% to 100%.

Do not assume that you just add the disabilities together. For example, if a knee injury makes the applicant 30% disabled and post traumatic stress disorder makes the applicant 20% disabled, it appears that the applicant would be 50% disabled, right? No, that is wrong. The VA has made it a bit more complicated. There is a combined disability rating calculator on their website that may be helpful.^[xvi] The actual combined disability percentage of 30% and 20% is 44%, which will then be rounded to the nearest 10% to 40%. Mathematically this is justified by the VA’s position that no one can be more than 100% able bodied.

This calculation gets more complicated based on how many disability ratings there are. For example, a veteran that has ratings of 30%, 20%, 20%, 10%, 10%, 10% is 70% disabled.^[xvii] (not 100% as it would be if you added them all together).

There are many rules and concepts that apply to VA disability law that are difficult to understand.  If you are interested in applying for VA benefits, we can help. Just call our office at 615-490-6020 to set up a consultation with Military Law Attorney Paul Tennison at Cole Law Group in Brentwood, TN. Our firm offers either in-person meetings or video conferencing.

_____________________________

^[i] For more information about the US Department of Veterans Affairs, I encourage you to visit their website at https://www.va.gov

^[ii] See https://www.va.gov/disability/eligibility

^[iii] https://www.benefits.va.gov/compensation

^[iv] See https://www.va.gov/disability/eligibility

^[v] To learn more about military discharge upgrade reviews: https://www.colelawgrouppc.com/blog/how-do-i-request-a-military-discharge-upgrade

^[vi] Id.

^[vii] To learn more about the VA disability claim decision letter: https://www.colelawgrouppc.com/blog/how-to-read-and-understand-your-va-disability-claim-decision-letter

^[viii] See http://m.uscourts.cavc.gov

^[ix] 38 CFR §4.1 Essentials of evaluative rating explains the percentage ratings: “represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations.”

^[x] 38 CFR §4.87.

^[xi] 38 CFR §4.71.

^[xii] 38 CFR §4.97.

^[xiii] 38 CFR §4.71.

^[xiv] Id.

^[xv] 38 CFR §4.79.

^[xvi] https://www.va.gov/disability/about-disability-ratings

^[xvii] Id.

U.S. Military retirement benefits allow military service members to elect to purchase a Survivor Benefit Plan (“SBP”).¹ SBP was created by Congress in 1972 and has been amended several times. The SBP is a monthly annuity that, upon the service member’s death, will be paid to the service member’s designated beneficiary, such as a surviving spouse, former spouse, surviving children, or dependent children. If the designated beneficiary is a spouse or former spouse, the annuity is terminated upon death of the spouse or remarriage of the former spouse before age 55. Under the SBP, premiums are deducted from a participating service member’s pay (including retirement pay). The military service member may or may not elect to provide this annuity and may change that election. 

Can SBP Be Distributed In A Divorce Settlement? 

Yes, SBP can be distributed in divorce. The most common way this is done is by execution of a military Qualified Domestic Relations Order (“QDRO”). The QDRO should specify if the spouse is awarded a portion of the service member’s military retirement. It should correctly follow the format prescribed by the Defense Finance and Accounting Service (“DFAS”) to show how the military retirement is to be calculated.² Further if SBP is awarded to the former spouse, it should clearly state that designation and order the military service member to execute whatever document is required by DFAS to notify them of this action. Further, the QDRO should state that the military service member may not change the SBP beneficiary without written approval of the court or the former spouse.   

How Does a Former Spouse Deem Election of SBP Benefits? 

A subsection of the law found in 10 U.S.C. § 1450(f)(3) is of significant concern to a service member and spouse who are about to be divorced or a service member and former spouse who have previously been divorced and are concerned about SBP. The section is titled “Required Former Spouse Election to be Deemed to Have Been Made.”  

From the perspective of an experienced military law attorney, this subsection is poorly drafted and should be amended by Congress. Unfortunately, many legislative mishaps as bad or worse than this continue to exist. In the event of continual inaction by Congress, the law is what it is. One of my goals with this article is to help former spouses navigate the labyrinth that is deemed election of SBP by a former spouse. 

The law currently states in part: 

(3) Required former spouse election to be deemed to have been made. 

(A) Deemed election upon request by former spouse. If a person described in paragraph (2) or (3) of section 1448(b) of this title [10 USCS § 1448(b)] is required (as described in subparagraph (B)) to elect under section 1448(b) of this title [10 USCS § 1448(b)] to provide an annuity to a former spouse and such person then fails or refuses to make such an election, such person shall be deemed to have made such an election if the Secretary concerned receives the following:  

(i) Request from former spouse. A written request, in such manner as the Secretary shall prescribe, from the former spouse concerned requesting that such an election be deemed to have been made.  

(ii) Copy of court order or other official statement. 

I must admit that I had to read the statute carefully to understand its meaning. In essence, if a military service member is ordered by a lawful court order to provide SBP coverage to his/her former spouse, such an order is not sufficient. A former spouse must also provide a written request, separate from the Court Order stating that he or she has been awarded continued SBP coverage from the military service member in a divorce. As the program is currently administered, such a request in writing should be submitted to DFAS. 

What Is the Time Limit for A Divorced Spouse To Submit Request For SBP Benefits? 

After reading thus far, you may be thinking to yourself that the process doesn’t seem so bad, and this isn’t really a labyrinth of a legal issue. After all, if the former spouse forgot to file anything with DFAS after the divorce, he or she would still have plenty of time to do so. Right?  

WRONG!  Part (C) of the same section states: 

 (C) Time limit for request by former spouse. An election may not be deemed to have been made under subparagraph (A) in the case of any person unless the Secretary concerned receives a request from the former spouse of the person within one year of the date of the court order or filing involved. 

   Hence, there is a one year time limit for a former spouse to make the required written request to DFAS. The statute doesn’t give any exception if the service member was ordered by the Court to execute whatever documents are required to ensure his/her former spouse continues to have SBP annuity and deliberately fails to obey that court order. From my review of the caselaw on this issue, the United States Court of Federal Claims does not allow for equitable tolling or any other exception to this arbitrary one year requirement.  

How Do I Navigate this Legal Labyrinth?

1. Ensure you/your attorney specifically include in the divorce final order (or QDRO) that you are being awarded continued SBP Annuity, that your spouse will not designate a different beneficiary and that your spouse and you are authorized to execute required documents with the Department of Defense to effectuate this. 
2. As soon as the order is final, navigate to the DFAS website and submit a DD2656-10 (no later than one year after the order was issued).³
3. Submit copies of all relevant documents requested by DFAS. 
4. Have DFAS confirm in writing within one year of when the order was issued that you are deemed SBP former spouse election. 

If you are a former spouse who has been awarded SBP coverage in your divorce and failed to notify DFAS within one year of the order, I recommend you consult with an experienced military divorce attorney at your earliest available opportunity. Once the service member is deceased, your options may be more limited. 

Call Cole Law Group Military Law Attorney Paul Tennison in Brentwood, TN with any military divorce questions regarding SBP designation at 615-490-6020. Let Cole Law Group help you Navigate, Litigate, and Resolve your military law issues today. 

_______________________________

¹ 10 U.S.C. § 1450.

² https://www.dfas.mil/garnishment/FormerSpouseSBPDeemedElection

³ DFAS website as of February 3, 2022: https://www.dfas.mil/garnishment/FormerSpouseSBPDeemedElection

Grayson v. Grayson Tennessee Court of Appeals

A recent Tennessee Court of Appeals case spent significant time analyzing and discussing United States Department of Defense Financial Management Regulations regarding military retirement benefits in divorce. Grayson v. Grayson, No. E2020-01339-COA-R3-CV, 2021 Tenn. App. LEXIS 354 (Ct. App. Sep. 3, 2021).

Grayson v. Grayson Facts

In the original Grayson divorce, the husband was in the military, and not yet retired at the time husband and wife divorced in 2011. Husband later retired in 2018 and wife was unable to receive any of the retirement funds which she believed she was entitled to due to the “deficient award language contained in the 2011 order.” Grayson, *1.  The Defense Finance and Accounting Service (“DFAS”) sent wife a letter letting her know that the 2011 order failed to provide DFAS a method they could use to calculate the retirement pay distributed to wife. After receipt of that letter, Wife went back to the trial court and attempted to solve the problem by having the court issue a new Military Retired Pay Division Order. The Husband appealed.

Appeal Outcome

The Court of Appeals vacated the trial court’s orders and remanded the case to the trial court, further directed the court to incorporate language compliant with DoD regulations with sufficient findings of fact and conclusions of law to enter a formula award or hypothetical retired pay award. On Appeal Husband argued the trial court lacked jurisdiction to modify the July 21, 2011 Order years later. The Court of Appeals dispensed with this argument as Tennessee Rule of Civil Procedure 60.01 allows for the correction of an error of wording in court Orders and is not time limited. The Court of Appeals reasoned that the trial court’s intention was to correct errors in the previous order language in accordance with what is authorized in Rule 60.01. Husband further argued the trial court’s order ambiguous as DFAS could read it to determine that wife is awarded 50% of his retirement pay instead of 50% of his retirement as of the date of divorce as the trial court intended. The Court of Appeals agreed with this argument and remanded the trial court’s order with further instructions for the trial court to make findings of fact, conclusions of law, and follow the correct DoD Regulation guidance.

Discussion of DoD Regulations

The most important part of the Court’s ruling for those interested in military and family law issues in Tennessee is the section that discusses DoD Regulations.¹ (pages 20-27) As the Court of Appeals explains, the relevant DoD Regulations “provide that trial courts may ensure that a former spouse is awarded a portion of the military member’s retirement pay without benefiting from the military member’s post-divorce promotions and acquisition of years of creditable service by either expressing the retired pay award as a formula award or a hypothetical retired pay award.” Grayson, *22.

A formula award computes the former spouse’s property interest in the member’s military retired pay as a multiplication of the percentage of the former spouse’s share provided by the court order multiplied by the length of the parties’ marriage during the member’s creditable service as the numerator and the member’s total creditable service toward retirement as the denominator. An example formula award provided by DFAS shows that where the former spouse was awarded 50% of the member’s military retired pay and the couple was married for 144 months during the member’s military service and the member later retired with 240 months of service, DFAS would multiple 144/240 x .5. 144/240 =.6. .6 x .5 = .3. In this example, the former spouse would be awarded 30% of the member’s retirement benefits.

A hypothetical award calculates the award “as though the member had retired at the time of the court order dividing military retired pay or some other date prior to the member’s actual retirement.”² For a hypothetical award, the trial court must provide (1) the percentage the former spouse is awarded, (2) the hypothetical years of creditable service, (3) the hypothetical retired pay base (high-3), and (4) the hypothetical retirement date. DFAS provides an example way Court’s should format this as: “The former spouse is awarded     percent of the disposable military retired pay the member would have received had the member retired with a retired pay base (high-3) of     and with     years of creditable service on    .”³ DoD provides this example:

The court order awarded the former spouse 50 percent of the disposable retired pay the member would have received had the member retired with 17 years of creditable service, a retired pay base of $2,200.00 per month, and a hypothetical retirement date of June 1, 1999. The member actually retired on June 1, 2002, with 20 years of creditable service, a retired pay base of $2,400.00 per month, and an initial gross retired pay of $1,200.00 per month (2.5% x 20 years = 50%; 50% x $2,400.00 = $1,200.00). First, the designated agent will calculate the member’s hypothetical retired pay multiplier, which in this example is 42.5 percent (2.5% x 17 years = 42.5%). Next, the designated agent will calculate the hypothetical retired pay amount, which in this example is $935.00 per month (42.5% x $2,200.00 = $935.00).⁴

DoD Financial Management Regulation 7000.14-R provides further relevant examples such as an example court order language for a retired member, active duty formula, and reservist formulas in Figure 29-1.

If you need help ensuring that your military retirement benefits are properly distributed to you in a divorce in Tennessee or are being properly paid after a Tennessee divorce, call Cole Law Military Attorney Paul Tennison at 615-490-6020 for a consultation regarding your potential military divorce case.

__________________

¹See Dep’t of Def. Fin. Mgmt. Reg., DoD 7000.14-R, Vol. 7B, Ch. 29 (June 2021).

² Id. 290608.

³ Id. Figure 29-1.

⁴ Id. 290608.

VA disability law can be daunting for many eligible veterans who want to submit a VA disability claim or wish to appeal a negative disability determination. One of the main concepts that is difficult for service members to understand is which injuries or illnesses VA disability will cover. The answer is “only those disabilities that the applicant can prove are service connected.”¹

What Is Considered a Service Connected Injury?

During my experience representing disabled veterans, it has become apparent to me that many VA disability claims are denied because the VA has determined the injury or illness is not service connected. Service connected means “an injury or illness that was incurred or aggravated during active military service.”² In VA decision letters language similar to the following is often used:

To establish direct service connection for a claimed injury or illness, objective evidence must show a diagnosis of a current disability that is related to a disease or injury incurred in or aggravated during active service; or that manifested itself to a compensable degree within one year from the date of discharge.³ The VA examiner will determine that a claimed injury or illness is service connected if the examiner opines that the disability is at least as likely as not (50% probability or greater) caused by or a result of active military service.

Hypothetical Example

The following hypothetical scenario may be helpful to illustrate the true significance of the term service connected injury. Let’s say that Veteran Smith served eight years on active duty in the army. Smith had a history of seeing military doctors occasionally for various minor injuries and illnesses. One day, Smith damaged his right knee while executing a parachute jump during his service. Upon leaving the military, his right knee became much worse.  He is now required to wear a knee brace on occasion and has stopped running due to pain in his right knee.

Smith also has other injuries or illnesses that could be the result of military service. When he left the Army, Smith considered himself healthy so he did not apply for VA disability. However, recently Smith’s injuries have made performing his job much more difficult, and he is not sure he can continue working in his current physical condition. Smith’s additional health problems include difficulty sleeping, lower back pain, and ringing in his ears (tinnitus). He is considering applying for VA benefits yet is unsure which benefits may be service connected.

As a first principle, Smith should apply for VA disability for all current injuries or illnesses that he believes could be related to military service. Under this hypothetical, Smith can apply for disability based on four conditions: right knee pain, sleep difficulty, lower back pain, and tinnitus. After applying for VA disability benefits, Smith will be scheduled for examination by a VA doctor in order to confirm current diagnoses. It is the VA examiner’s duty to determine which are service connected.

Smith’s right knee pain should be found as service connected based upon the fact that he was injured in the parachute jump and military medical records should support that claim. Regarding sleep disfunction, the VA would likely want Smith to engage in a sleep study to confirm that this is currently an issue. Based upon our hypothetical, it is questionable whether Smith’s lower back pain is related to military service. Parachute jumping is obviously a dangerous activity which may cause many problems such as lower back pain. However, is there evidence that Smith suffered any lower back pain during his time on active duty? There will likely be sufficient evidence to support tinnitus as service connected if Smith was exposed to loud noise as a result of his military service. Most military service members are exposed to loud noise during their time in service and recent litigation has highlighted the problem. ⁴

How Can I support My Claim for a Service Connected Disability?

The best support for a service connection disability is a record of treatment while on active duty for an issue related to the claimed injury or illness. In Smith’s case, that is the service connection of the parachute accident in which he injured his right knee. The most difficult claim for him to establish as service connected in the above scenario would be his difficulty in sleeping, especially if he was never seen by a military medical provider for that complaint during his time on active duty and can produce no military medical documentation as evidence. Veterans may also use affidavits of knowledge provided by someone that has direct knowledge of the veteran’s medical issues based on serving or interacting together to provide lay evidence of current injury or illness or the first occurrence of the injury or illness.

Can I Apply for Service Connected Disability Benefits After I Am Discharged?

Earlier in this article I referred to language that is typical in a VA decision letter. It is pertinent to note that the VA requires objective evidence that shows a current disability is related to a disease or injury that occurred during or was aggravated by active service  or that presented itself within one year from the date of discharge. Thus, military service members who are nearing the completion of their time in service should strongly consider a full medical examination within one year of the completion of their service. If this examination shows a current injury or illness that is connected to military service, such a diagnosis may provide support for the applicant to apply for VA disability. Veterans may apply for VA disability at any time. There is no statute of limitations for VA disability. Additionally, veterans that are denied disability claims may reopen the denied claim by submitting new and material evidence to the VA. ⁵

If you need help in filing a service connected disability claim or want to appeal a negative disability determination, call Cole Law Military Attorney Paul Tennison at 615-490-6020 for a consultation regarding your potential VA disability case. ____________________________

¹ See https://www.va.gov/opa/publications/benefits_book/benefits_chap02.asp

² Id.

³ See 38 CFR §§ 3.303, 3.304, 3.400.

⁴ See https://taskandpurpose.com/news/3m-earplug-defective

⁵ 38 CFR § 3.156 – New evidence.

Many current or former service members and their current or former spouses are generally aware of the Uniformed Services Former Spouses’ Protection Act. However, from my experience in working with military family law matters, it is an area of law that many people misunderstand. The purpose of this article is to help members and former spouses better understand their rights and obligations under the “USFSPA”.

The Uniformed Services Former Spouses’ Protection Act is a federal law codified at 10 U.S.C. § 1408, et. seq. The Act gives state courts the authority to treat disposable retired pay as property of the member and spouse in divorce. In the definitions section of the Act, the law specifies that only “disposable retired pay” as defined in the act is divisible. The Act prescribes important limitations, i.e. it only applies when the spouse or former spouse was married to the service member for at least ten years during which time the member performed at least ten years of service creditable for retired pay. The law does not authorize courts to order any member to apply for retirement at any specific time. All payments under the USFSPA cannot exceed 50 percent of the disposable retired pay of a member. If there is more than one court order, they are satisfied on a “first-come, first-served basis”.

Disposable Retired Pay

Disposable retired pay is retired pay minus any overpayments, disability pay including VA disability, and Survivor Benefit Plan payments. It is defined in 10 U.S.C. § 1408(a)(4)(A) as: “[T]he total monthly retired pay to which a member is entitled less amounts which— (i) are owed by that member to the United States for previous overpayments…; (ii) are deducted from the retired pay of such member as a result of forfeitures of retired pay ordered by a court-martial or as a result of a waiver of retired pay required by law in order to receive [VA Disability pay]…; (iii) in the case of a member entitled to retired pay under chapter 61 of this title [10 USCS §§ 1201 et seq.], are equal to the amount of retired pay of the member under that chapter computed using the percentage of the member’s disability on the date when the member was retired (or the date on which the member’s name was placed on the temporary disability retired list); or (iv) are deducted because of an election under chapter 73 of this title [10 USCS §§ 1431 et seq.] to provide an annuity to a spouse or former spouse [commonly known as Survivor Benefit Plan or SBP].

Another important point to understand is that the USFSPA does not require the former servicemember to calculate payments for child support, alimony, or division of property. Instead, the Secretary must be served with an applicable court order, and then the Defense Finance Accounting Service (“DFAS”) will make the required payments “from the disposable retired pay of the member to the spouse or former spouse…”

Example 1

By way of example, suppose a military servicemember served twenty years and retired. He was married for twelve of those years to his former wife. In their Tennessee divorce, the former wife was awarded a percentage of the servicemember’s retirement benefits. It is phrased that she is awarded a percentage of disposable retirement benefits calculated as 120 months divided by total months of creditable service (240 in this example) at the rank the servicemember held at the time of divorce. The increased pay due to increased rank after divorce does not go to the former spouse. In this scenario, his monthly retirement pay is calculated by DFAS as $4,400 per month including $400 in VA disability and $300 in SBP. He therefore has disposable retirement pay of $3,700. DFAS determines the solution to the formula is $1,600. Thus, the former spouse will receive a monthly payment of $1,600 and the former servicemember will receive a monthly payment of $2,800.

Example 2

As a second example, a military servicemember retired after twenty-six years of service. She was married for nine years to her former husband. Since the marriage did not last for ten years of creditable service, there is no reason to continue the analysis here as the USFSPA does not apply. Any state court order that divides her retired pay between her and her former husband is in error and superseded by the USFSPA.

Example 3

As a third example, a military servicemember retired after twenty-four years of service. He was married for eighteen years of service to his former wife. The former servicemember was medically retired by the military and is awarded 100% disability from the VA. DFAS calculates his retirement benefits as $6,000 per month including $6,000 in disability payments. Thus, this servicemember has $0 in disposable retirement pay. Under USFSPA, the former spouse cannot receive any payments from DFAS even if a valid court order was served on DFAS. The former spouse has no redress available through DFAS. She could, however, have received alimony in the divorce separate from her former husband’s retirement benefits.

United States Supreme Court Cases

The United States Supreme Court has on at least two occasions decided disputes involving the payment of military retirement benefits pursuant to the USFSPA. In Mansell v. Mansell, the Court discussed the issues as follows: “[T]he language of the Former Spouses’ Protection Act. Section 1408(c)(1) of the Act affirmatively grants state courts the power to divide military retirement pay, yet its language is both precise and limited. It provides that ‘a court may treat disposable retired or retainer pay . . . either as property solely of the member or as property of the member and his spouse in accordance with the law of the jurisdiction of such court.’ § 1408(c)(1). The Act’s definitional section specifically defines the term ‘disposable retired or retainer pay’ to exclude, inter alia, military retirement pay waived in order to receive veterans’ disability payments. § 1408(a)(4)(B). Thus, under the Act’s plain and precise language, state courts have been granted the authority to treat disposable retired pay as community property; they have not been granted the authority to treat total retired pay as community property… we hold that the Former Spouses’ Protection Act does not grant state courts the power to treat as property divisible upon divorce military retirement pay that has been waived to receive veterans’ disability benefits.” 490 U.S. 581, 588-95, (1989).

The United States Supreme Court once again addressed this issue in the case of Howell v. Howell, whereupon the Court stated: “State courts cannot ‘vest’ that which (under governing federal law) they lack the authority to give. Cf. 38 U.S.C. §5301(a)(1) (providing that disability benefits are generally nonassignable)…we note that a family court, when it first determines the value of a family’s assets, remains free to take account of the contingency that some military retirement pay might be waived, or, as the petitioner himself recognizes, take account of reductions in value when it calculates or recalculates the need for spousal support.” 137 S. Ct. 1400, 1405-6 (2017). Together these cases show that state courts may not award disability retirement pay to former spouses as a result of the definitions in the USFSPA.

Note from the Author

Harnessing my fourteen-year career in the military and my experience as an attorney, I take pride in providing value to servicemembers, former servicemembers, military spouses, and former military spouses. I enjoy deciphering the interaction and nuances of family law and military law in Tennessee. If you have additional questions, I encourage you to explore these practice areas on our website or call Cole Law at 615-490-6020 to arrange a consultation with me.

Many service members understand the frustration of being wrongfully denied disability compensation from the Veterans Administration. In my experience I have observed veterans who became frustrated with the process and ultimately gave up. This is most unfortunate. If you have suffered an injury or illness due to your military service, you should be compensated under federal law. However, the failure of many service members to understand the VA system can cause self-inflicted problems.

I recommend the following five best ways to present persuasive disability evidence as an effective strategy:

1. Recognize your mission and ensure that everything you submit helps further your mission.
2. Tie your evidence to your military service.
3. Use the power of narrative to paint a compelling picture.
4. Understand the role of the VA claims examiner.
5. Use overwhelming firepower by finding multiple sources to support each of your claims.

Recognize Your Mission

Preparing for a VA case is like preparing for a military mission. The most junior soldiers have simple tasks in preparing for a mission, usually checking that they have all assigned equipment and that their weapons are functional and their vehicles are operational. At the strategic level, there is immense planning that occurs before military operations are conducted. The logistical and personnel challenges to move an army into a theater of operations is immense. Yet the individual soldier does not have to be concerned with all of that; he just focuses on his role to accomplish the mission. The military decision-making process starts with Step 1: Receive the Mission.

Now if you are a veteran applying for VA disability, your mission is to achieve the highest disability rating that your case warrants. You are not expected to know what disability percentages your disabilities warrant when first applying for VA disability. Instead, you should focus on applying for disability for every illness or injury that you are currently suffering from that was caused or aggravated during your time in service.

Tie Evidence to Your Military Service

The most persuasive disability evidence is that which is clearly tied to your military service. Let’s say, for example, that you were a paratrooper, injured your knee during a jump, and had no previous history of knee pain before entering the military. However, after the jump your military medical records documented time at sick call, surgeries, physical therapy, etc. These medical records are solid evidence that your injury was service connected.

Use the Power of Narrative

Do not forget the power of narrative. Storytelling is essential to the human experience. Write your VA injury statements in a way that tells a story. For example, “I was training for the Army 10 miler team in Germany and running significant miles each week. After the race, I suffered from runners’ knee in my right knee for several weeks and went to sick call.” This short narrative paints a picture of what happened and will help the VA examiner visualize the humanity in what occurred.

Recognize the Role of the Claims Examiner

Another important doctrine when preparing for military operations is to think like the enemy. This is so central to army doctrine that one of the primary staff positions is intelligence, where the primary focus during the planning cycle is to help the commanders and staffs understand the tactics, capabilities, and vulnerabilities of the enemy forces.

An understanding of what the VA examiners do is of similar value. VA examiners look at hundreds of applications each week. They see some that are poorly worded or illogical. They can be overwhelmed with their caseload. Many of them are patriotic, hard working Americans that take their role very seriously. Most of them do not have a significant science or medical background. Thus, if your disability is unusual, you will want to ensure you frame your medical evidence in a way that you think a layperson will understand.   

Use Overwhelming Firepower And Present Multiple Sources to Support Each Claim

Overwhelming firepower is a key component of many military operations. In the field artillery, we focus on massing indirect fire at critical points to destroy, neutralize, or suppress the enemy. The most effective modern military attacks include direct fire, indirect fire, close air support, naval gunfire, and whatever other weapons are available.

You can use a similar strategy to ensure that your evidence supports your disability claim. For example, suppose you are claiming PTSD. You should gather medical evidence from a treating physician to prove you have been injured and the extent to which that injury impacts your life. You could support this medical evidence with affidavits of knowledge from family or coworkers that testify to their observations of the impact your PTSD has on you. You can further support your claim by having your treating physician fill out a VA survey regarding your PTSD. Now, instead of a single piece of evidence regarding your disability claim, you have five data sources that all show  you should be given a high disability rating percentage.

In Conclusion:  The Road to Success

Keep these “5 Best Ways to Present Persuasive Disability Evidence” in mind as you work with the VA claims process, and you will give yourself the best chance of success. If you feel you are in beyond your depth and need some help, reach out! There are many organizations that volunteer to help veterans with VA cases.

Military Law Attorney Paul E. Tennison has over fourteen years of military experience, including time spent as a commissioned officer in Korea, Germany, and Poland. Paul understands the struggles that service members and veterans face when dealing with the VA. He has been personally involved in many cases where the VA ignored relevant evidence at the regional office level, and those are issues that Paul focuses on in VA appeals where he provides significant value to veterans. If you have been dealing with a difficult VA case, contact Paul at Cole Law Group in Nashville 615-490-6020 to learn how he can help you.

I was unaware of the traditions of military challenge coins until I arrived at West Point. As a cadet at the United States Military Academy, I often interacted with Army officers and senior non-commissioned officers who had on their desk or in their office a large collection of military challenge coins. I would sometimes recognize the unit insignia of a well known Army unit or a combat operation or training center that was displayed on a specific coin.

I distinctly remember the first time I was personally awarded a military challenge coin. As a cadet, I volunteered to be on the Color Guard during my sophomore year. As part of my Color Guard duties that year, I often carried general officer flags during parades. One day, as I was performing that duty for the Commandant of Cadets, Brigadier General Robert L. Caslen, the General surprised me by shaking my hand and thanking me for doing an excellent job in performing my duties. He presented me with a coin bearing one star and the West Point insignia that to this day is the military challenge coin of the highest rank that I have been awarded.

I received three more coins while at West Point. Two were awarded during my cadet troop leadership training experience at Fort Hood, Texas, with the Regulator Battery with the 3rd Squadron, 3rd Armored Cavalry Unit, while the last one was granted following a three week internship with the US Army Research, Development, and Engineering Command in Orlando, Florida.

I received five coins during my 2.5 years with the 2nd Infantry Division at Camp Casey and Hovey Korea. Four of those coins were awarded during my time as a company fire support officer at the First Tank Battalion, 1-72AR. The fifth was granted during my service as a fire direction officer, platoon leader, or personnel officer for the first battalion fifteenth field artillery regiment “First to Fire!” During my 1.5 years in Vilseck, Germany with the 2nd Cavalry regiment, I did not receive any coins.

During my time with the Tennessee Army National Guard from 2015 until the present, I added seven coins to my collection. I was awarded the coin of the 278th ACR by COL H. Warner Holt, II in 2016. COL Holt told me on numerous occasions that he was glad to have me as a part of the unit and helped me feel welcome in the TNARNG. I enjoyed working with COL Holt during his time in command. I was awarded the Regimental Fires Squadron coin by LTC John King in a ceremony where I was recognized as the Squadron Officer of Annual Training at Fort Hood, TX in 2017. Several of my Soldiers later told me that was the only time they remember someone assigned as the logistics officer (S-4) to have been recognized by the Squadron leadership for outstanding performance.

Before my deployment to Poland I was at Fort Bliss, TX, for mobilization. While there, I was able to catch up with my friend LTC Brad Fausnaugh. Brad and I had served together in Germany with the Field Artillery Squadron of the 2nd Cavalry Regiment. Brad told me he wished me the best of luck on my upcoming deployment and presented me with the coin of the 2-3 Field Artillery. While in Poland I received a coin from the Romanian Blue Scorpion Air Defense unit and a coin for Operation Atlantic Resolve that shows where US Military bases in Poland were in 2019.

The coin that I am most proud of bears my name and that of my teammate, 1SG Dustin Dunn. During our Poland deployment, 1SG Dunn and I decided to purchase coins to commemorate the deployment for our Battery. We picked a design that turned out to be an excellent symbolism of our deployment, and the significance of the coin is very meaningful to me. On the front appears the crossed cannons of the field artillery with a red background, as red is the traditional branch color of the Field Artillery. The Bulldog at the center of the coin is the Battery mascot. The script on the front states BRAVO BATTERY TF2 eFP POLAND and the Field Artillery motto, KING OF BATTLE. On the backside of the coin, the Battle Group Poland logo is featured which includes a map of Poland overlayed with the flags of our four allied nations that worked together in the Battle Group: Croatia, Romania, the United Kingdom, and the United States. During a ceremony in January 2020, we awarded these coins to each Soldier in the Battery in recognition of their contribution to the success of the BULLDOG Battery mission in Poland.

The final challenge coin in my current collection was received on September 12, 2020. LTC John King awarded me with the Regimental Fires Squadron coin as he thanked me for my leadership of the Bulldog Battery over the past thirteen months. September 12 marked the successful completion of my second command of a field artillery battery in the Tennessee Army National Guard. I will forever be proud of the fact that I commanded 105 Soldiers in a forwarded deployed training mission and brought every Soldier back home safely to Tennessee.

After 10 years of service in the Army, I can look at each of my sixteen coins and be reminded of my experience in the Army. Examining them helps me remember and reflect on my time as an Army officer. Being introspective I can examine what I learned from each of these experiences, whether it be perseverance through adversity or the ability to learn from mistakes. Overall, I am quite thankful that I have been able to travel and grow as a leader in the Army. Being stationed in Korea, Germany, and Poland has greatly affected my world view and helped broaden my perspectives. Having successfully finished my time as a company grade officer, I look forward to future challenges and giving my best effort to each mission for which I am assigned. Perhaps I will continue to add to my military coin collection during the remainder of my service in the Tennessee Army National Guard.

Note:  Robert L. Caslen Jr. would later command the 25th Infantry Division and was promoted to LTG as the Superintendent of West Point. Caslen retired from the Army in 2018.  On July 19, 2019, Caslen was selected as President of the University of South Carolina, a position he currently holds.

The US Military’s Reserve Officers’ Training Corps is a system through which many college students can pursue an undergraduate education while conducting military training that prepares them for a period of service as a commissioned military officer. According to the US Army, “The overall mission of the Army ROTC Program is to produce commissioned officers in the quality, quantity, and academic disciplines necessary to meet active Army and reserve component requirements.”¹ Army ROTC includes a chain of command starting with a Commanding General and going down through a Battalion Commander and Professor of Military Science (PMS) to individual cadets.

Enrollment in ROTC is voluntary. Some students will take ROTC classes because it interests them, yet have no obligation to continue military service. Other students, such as ROTC scholarship recipients, will be required to sign a contract at the commencement of their scholarship. The goal of many ROTC cadets is to graduate from their respective colleges and secure a commission as an officer in the US Military at approximately the time of their college graduation.

Can I Disenroll From the Army ROTC?

The US Army lists 16 different reasons a cadet may be disenrolled from ROTC. A scholarship or a non-scholarship cadet may be dismissed for one of the following:

• To receive an appointment or enter into an officer training program other than ROTC
• To receive training under an Army Medical Department program
• At cadet’s own request
• Withdrawal or dismissal from the attending academic institution
• Medical disqualification
• Failure to maintain required GPA
• Personal hardship
• Height/weight or physical fitness test failures
• For being an approved conscientious objector
• Dismissal from advanced camp training
• Positive drug urinalysis or alcohol abuse
• Misconduct
• Inaptitude for military service
• Undesirable character
• Indifferent attitude
• Breach of contract.

CC Pam 145-4, PMS Guide for Enrollment, Retention, and Disenrollment is a good reference to better understand why cadets should or should not be disenrolled. That regulation describes what actions ROTC Battalion Commanders and PMS should take when disenrollment is required, including information on how to notify cadets and appoint a board of officers when necessary.²

Can I Appeal A Dismissal From the Army ROTC?

The US Army gives cadets the right to appeal their dismissal to a panel of officers.³ Importantly, each cadet has a right to appear personally before the board or officer when considered for disenrollment. A cadet may be assisted in this hearing by any “reasonably available military officer” or by a civilian attorney at the cadet’s expense. The Army limits an attorney’s representation in such an appeal by stating: “The counsel may not represent the cadet at the hearing, although counsel may be available to give advice.”⁴ The purpose of the board is to allow the cadet to present his or her case and allow the officer or panel of officers to recommend an outcome to the Commanding General of US Army ROTC Cadet Command (ROTCCC) for a final decision.

What Is the Appeal Process for An Army ROTC Disenrollment Decision?

The appeal strategy will differ based on the reason for the disenrollment cited by the Army. For example, if disenrolled for a height/weight or physical fitness test failure, the cadet should read the Army Regulation that specifies the Army’s Weight Control Program and Physical Fitness Test requirements. The regulations specify what actions are required to remediate failures. Thus, a cadet that fails one of those only one time, should not be subject to dismissal. Some Professors of Military Science who are good at their job will only dismiss ROTC cadets that clearly failed to comply with Army regulations. Others may be a bit trigger happy on the dismissal decision and not follow the requirements of all applicable regulations. Pointing out that the Army has failed to follow the appropriate regulations in the specific case of the cadet at issue is a successful appeal strategy in many cases.

An appeal will proceed like a court hearing, except a cadet may not have an attorney advocate on his/her behalf. Most cadets should prepare an opening statement arguing why the Army’s decision to dismiss is erroneous. A cadet may then call favorable witnesses to testify on his/her behalf. After the witnesses testify, the cadet should use a closing argument to discuss why the evidence presented shows that the Army’s decision to dismiss is erroneous.

After the hearing, the Officer or panel of Officers presiding will write a memorandum of record to the Cadet Command with a recommendation. This recommendation will next be forwarded to the Cadet’s PMS for a recommendation. Ultimately, the Commanding General of ROTCCC or his designee will make a final decision on whether the Cadet is disenrolled. The Commanding General’s decision is final. There are no further rights to an appeal.

What Are the Potential Outcomes of An Army ROTC Disenrollment Appeal?

Army scholarship ROTC cadets may have a huge amount at stake during appeals. Disenrollment may mean owing the Army all scholarship payments here-to-fore received, which could be hundreds of thousands of dollars. Additionally, disenrolled scholarship students may be involuntarily ordered to active duty within 60 days after they have or would have completed their baccalaureate degree requirements. A successful disenrollment appeal will result in continued cadet status and the potential to commission as an Active Army, Army Reserve, or Army National Guard Officer.

Summary

A military law attorney can be of value to you in a potential ROTC dismissal appeal. Nashville Attorney Paul Tennison has served our country for over a decade as an active duty Army and Army National Guard officer. Paul has successfully represented Tennessee service members in numerous military law matters, including ROTC dismissal appeals. If you need an experienced attorney to advocate for you, call Cole Law today at 615-490-6020 to explore how Paul Tennison can help you navigate, litigate, and/or resolve your military law matter.

References

Army Regulation 145-1

US Army Cadet Command Regulation 145-1

US Army Cadet Command Regulation 145-9

CC Pam 145-4, PMS Guide for Enrollment, Retention, and Disenrollment

_______________________________

¹ Army Regulation 145-1 paragraph 1-5.

² CC PAM 145-4 paragraph 6-2.

³ AR 145-1 paragraph 3-43(b).

⁴ Id.

A military discharge upgrade can be an important step in the life of a veteran who believes that he or she received a lower discharge than what was deserved. Various federal and state benefits are available only to veterans who were discharged at an acceptable level. The best discharge is an Honorable discharge, which should enable the veteran to access all benefits. General Discharge Under Honorable Conditions is the second highest level. Other Than Honorable Conditions Discharge is the third level, while a Bad Conduct Discharge is the fourth. Dishonorable is the lowest level of discharge and is reserved for those convicted of serious crimes while in the military. Veterans who receive a Dishonorable Discharge forfeit all benefits, cannot lawfully possess a firearm, and forfeit their right to vote. For more information about types of military discharges, you should refer to this article.¹

Fortunately, U.S. federal law allows veterans to request a higher-level discharge through one of two record-correction boards. Within 15 years of discharge, veterans may apply to a Discharge Review Board (DRB) using form DD-293. Importantly, DRBs may not make a discharge worse nor can they overturn a court-martial decision. If a discharge occurred more than 15 years ago, a veteran can apply to the Board for Correction of Military Records (BCMR). Veterans should apply to the BCMR within 3 years of discovering the error or injustice they are asking the board to fix using form DD-149. BCMRs also cannot make a discharge worse or override a court-martial conviction.

What Evidence Must I Include In a Discharge Upgrade Request?

If you are a veteran who wants to upgrade your military discharge, you must first determine which board to apply to. Then you need to request your military records. One way to request this information is through filling out form SF180.²  You may also use DD Form 2870 to request medical and dental records. VA form 10-5345 and 10-5345a allow disclosure of medical or dental records kept by the VA.

If you believe that your discharge may be related to PTSD or TBI, you should include additional information with your discharge upgrade application to make it stronger. The “Hagel Memorandum” in 2014 created supplemental guidance about discharge upgrade requests related to PTSD.³ You should include a medical diagnosis or evaluation from a medical professional. You should also gather additional evidence that documents your mental health issues, such as other medical records, police records, or letters from friends or family about how they have observed firsthand your struggles with symptoms of TBI or PTSD.

In your application you will need a narrative to support your request. To make this narrative persuasive, you should draft it in the language used by the record-correction boards. The DRBs review whether or not a discharge was proper and equitable. The board assumes the discharge was proper unless the military made an error of fact, law, procedure, or discretion in deciding your discharge, which might create substantial doubt that you would have been awarded the same level of discharge if that error had not been made. A discharge is also seen as improper if there has subsequently been a change in policy (i.e. the repeal of don’t ask, don’t tell) that requires a different discharge. The BCMRs can act to correct an error or remove an injustice. Thus, you should explain any errors made during your discharge process and why the outcome would have been more favorable had the errors not occurred. Injustice may include a major change in relevant legal policy.

You should include several (five or more is a good rule of thumb) character reference letters from family, friends, co-workers, those you served with in the military, teachers, classmates, spiritual leaders, or anyone else who can support your story of good conduct while in the military and/or in your civilian community after your discharge. These character reference letters should be personalized by each letter writer. I suggest that you generate a draft letter for each person you ask to write a letter of recommendation. Include a note that you would like them to personalize the letter, and that you are just providing a draft letter as a framework to help them get started. It is important that these letters show evidence of your good conduct, such as good performance reviews, participation in community and charity work, awards, achievements, and your educational advancements. The letters should also include any firsthand knowledge of applicable errors or injustices in your record. The strongest letters are those that portray you in a positive light, include information regarding a long personal relationship with you the applicant, and are persuasively written to convince the board that your discharge should be upgraded.

Once you have gathered all the pertinent evidence to support your application, you should mail it to the appropriate DRB or BCMR for your branch of service. You can find the current website for each branch here.⁴ These pages will include the correct mailing address where the application may be sent.

How Can A Military Law Attorney Help With My Discharge Upgrade?

Navigating the discharge review process is complicated and is often best done with the help of legal assistance.  A military law attorney can help you understand what rules apply, brainstorm your best arguments, help you compile all relevant supporting documents, work with you to draft a compelling narrative statement, help draft character reference letters, and be your supportive ally.

If you are a veteran who would like to apply for a discharge upgrade, call us today at (615) 490-6020 and speak with Nashville Military Law Attorney Paul Tennison about your case.

____________________

¹ https://va.org/forms-of-military-discharge

² See https://www.usa.gov/military-records for options on how to request your military records.

³ https://dod.defense.gov/News/Article/Article/603172/hagel-issues-guidance-for-veterans-discharge-upgrade-requests; https://archive.defense.gov/news/osd009883-14.pdf

⁴ Army: https://arba.army.pentagon.mil/adrb-faq.html; Navy (includes Marine Corps): https://www.secnav.navy.mil/mra/CORB/Pages/NDRB/default.aspx ; Air Force https://www.afpc.af.mil/Separation/Discharge-Review-Board; Coast Guard: https://www.uscg.mil/Resources/legal/DRB

You may have heard about Article 15 of the Uniform Code of Military Justice (“UCMJ”). Servicemembers experienced in the realm of military justice may reference Article 15 punishment under numerous terms: punishment by the commander, non-judicial punishment (“NJP”), getting ninja punched, captain’s mast, or admiral’s mast. Essentially an Article 15 proceeding is where a commanding officer determines if a military member has committed a relatively minor infraction of the rules governing military servicemembers. In my Army service I have witnessed Article 15s for many different circumstances, including soldiers being repeatedly late to formation, a soldier being absent without leave (“AWOL”) for a short period of time, a soldier reporting drunk to duty, a soldier involved in a bar fight, a soldier that got a DUI, a soldier breaking curfew, insubordination, and a soldier falling asleep while on guard duty. More serious crimes under the UCMJ will go straight to a court-martial and not be adjudicated under Article 15. Article 15 proceedings are much more common than courts-martial.

The Uniform Code of Military Justice is the law that applies to U.S. military servicemembers.¹ This includes all branches of the uniformed services in the United States: Army, Navy, Marine Corps, Air Force, and the Coast Guard. However, the UCMJ does not apply in all circumstances. For example, National Guard and Air Guard Soldiers are only subject to the UCMJ when activated in a federal capacity. Military reserve components, servicemembers, and service academy cadets are governed by the UCMJ. ROTC cadets are exempted from the UCMJ even while on active duty for training.²

Article 15 is titled “Commanding Officer’s non-judicial punishment.”³ It authorizes commanders to impose disciplinary punishments for minor offenses without the intervention of a court-martial. Article 15 lists and limits the punishment a commander may impose on members of his command. It also authorizes the commander to suspend, remit, or mitigate the punishment imposed. Subsection (e) grants appellate rights to the next superior commander if the person punished considers his punishment unjust or disproportionate to the offense. 

Part V of the Manual for Courts-Martial further delineates NJP procedure. The full text of the 2016 edition of the Manual for Courts-Martial is available online here.⁴ The general provisions of Part V describe the nature of NJP as being more serious than corrective measures and less serious than trial by court-martial. That provision further describes the purpose of NJP as to allow the commander “essential and prompt means of maintaining good order and discipline.”⁵ Commanders are responsible with, among other things, “maintaining good order and discipline in their commands.” Commanders are charged to consider NJP on an individualized basis. Commanders “should consider the nature of the offense, the record of the servicemember, the necessity for good order and discipline, and the effect of NJP on the servicemember and the servicemember’s record.”⁶ In most circumstances, any member of the armed forces may demand a trial by court-martial instead of NJP.

In practice, military commanders often take their responsibility to administer NJP to maintain good order and discipline quite seriously. They often discuss with other senior leaders in their organization, such as their senior enlisted advisor, whether and how to punish infractions before beginning the NJP process. Commanders also may consult with military attorneys known as judge advocates to receive advice on NJP and other legal issues. Commanders that effectively utilize NJP often seek buy-in to the process through a formalized Article 15 process. In my experience, this includes requiring the offending soldier to report with his or her chain of command for NJP consideration. Servicemembers sometimes refer to this as being called to the carpet. Commanders will then use a checklist form developed by the judge advocate’s office to ensure that all the requirements of the UCMJ for NJP are properly followed and documented in the process.

For example, as a junior officer, a soldier in my chain of command failed to follow a lawful restriction from his last Article 15 punishment and was caught in violation. As the first officer in his chain of command, I counseled him on this violation. Then I went with the offending soldier, his squad leader, and platoon sergeant to see the first sergeant and company commander. The company commander asked the soldier what happened, and we discussed. Then the commander asked for any mitigating facts. Each soldier in the chain of command was then requested to give his recommended punishment. After recommendations by the squad leader, platoon sergeant, the first sergeant, and me, the commander made his decision and imposed NJP on the soldier. The soldier and the commander then filled in and signed the appropriate portions of the form and a copy was placed in the soldier’s local military record file.

As a soldier confronted with UCMJ punishment, you have the absolute right to an attorney. The reality is that servicemembers on active duty are only provided with free legal counsel in limited circumstances. However servicemembers are always free to consult with and/or retain private attorneys at their own expense.

In practice, servicemembers confronted with Article 15 punishment are often better off agreeing to the Article 15 punishment imposed by the commander than appealing to a court-martial. If the evidence clearly establishes the servicemember committed the infraction, then it is unlikely the servicemember would be found not guilty at the court-martial. Additionally, the punishment from a court-martial conviction is often substantially more damaging to the servicemember than the punishment that would be imposed in an Article 15. An Article 15 is not seen as a conviction because it is non-judicial. Thus, an Article 15 sentence should not be damaging to future life outside the military in most circumstances. A conviction by court-martial often results in a less than honorable discharge with consequences that may follow the servicemember for the rest of his or her life, including loss of veterans’ benefits, loss of the right to vote, loss of the right to possess a firearm, etc. Therefore, servicemembers should not appeal an Article 15 hearing to a court-martial without exceptional reasons.

I have personally known several senior leaders in the Army that have been subjected to minor military punishment such as an Article 15 or Reprimand who were able to overcome that punishment and have highly successful military careers. As a military commander myself I understand the Article 15 process and am able to leverage that understanding in representing Cole Law Group’s military clients.

An experienced military law attorney can help you understand your rights, determine whether you should agree to NJP or decide to request a trial by court-martial, advise you on the applicable military rules, and brainstorm your best arguments. If you are a military servicemember facing non-judicial punishment, call today at 615-490-6020 to speak with Military Law Attorney Paul E. Tennison about your case.

_____________________

¹ http://www.ucmj.us/about-the-ucmj

² Id.

³ 10 USC §815 Art. 15; available at https://www.law.cornell.edu/uscode/text/10/815

⁴ MCM 2016; available at https://jsc.defense.gov/Portals/99/Documents/MCM2016.pdf

⁵ Id.

⁶ Id.

For those of you who have read Paul’s blogs, worked with him on a case, or wish to retain him as your counsel regarding a military law matter, you may have noticed that he has recently been absent from the office. As noted in his attorney profile on our website, Paul attended the United States Military Academy at West Point and subsequently gained extensive military experience that included challenging training exercises overseas in Korea and Germany. He then received his Juris Doctor from Vanderbilt Law while continuing to serve our country as an officer in the Tennessee Army National Guard. Upon passing the Tennessee Bar, Paul joined Cole Law Group as an associate attorney and pursued his passion to build a military law practice to serve military members as well as veterans.

This summer Paul was called up for active duty by the U.S. Army and deployed to Bemowo Piskie, Poland, where he is currently in command of 105 soldiers in support of NATO’s Enhanced Forward Presence (eFP) Battle Group Poland. The eFP provides a responsive and flexible military capability to respond to any aggressive act as part of NATO’s overall deterrence and defensive posture. 

Battle Group Poland is a multinational battle group, comprised of U.S., U.K., Croatian and Romanian soldiers that will serve alongside the host nation’s 15th Mechanized Brigade as a defense and deterrence force.

Click on the following link if you would like to see facebook posts and learn more about the NATO Enhanced Forward Presence Battle Group Poland:  facebook.com/NatoBGPoland/   If you look carefully, you may recognize Paul in some of the photos.

During his deployment, Paul will be acting as the Bravo Battery Commander for B BTRY Regimental Fires Squadron, 278th Armored Cavalry Regiment. The 278th ACR is one of two “Heavy” ACRs still in existence and is based out of Knoxville, Tennessee. Field artillery officers neutralize the enemy by cannon, rocket and missile fire. They are experts in tactics, techniques and procedures for the employment of fire support systems.  As the commander, Paul will be responsible all aspects of the operations of his battery and for everything the unit does and fails to do.

We at Cole Law Group are proud of Paul’s commitment to serving our country and look forward to his return to CLG and the practice of law in the near future. In the meantime, Paul is keeping in close touch with our team.  We have found his messages and photos to be insightful and extremely interesting and will therefore routinely share many of them in diary form on our blog and via social media.

7/29

CLG Team,

Good afternoon, I have made it safely to Poland and am fighting that jet lag! Things have gone well so far. I have started inventories for the change of command. I have already started letting the Battery know many of my ideas on ways to improve the unit and accomplish our mission. This is as challenging of a situation as I anticipated, and yet I am feeling confident that my team will do well. I have attached some pictures I have taken recently. Most of these pictures are from an award ceremony this evening (we are 7 hours ahead of you) where our Battery presented awards to many Soldiers for excellent work in previous exercises. The first two are pictures I took in Warsaw on my way to BPTA (what we call this post/training area) from the airport.

  I am excited that we have an important event in our training cycle coming up. Our Battle Group (BGP), similar to a task force or Battalion of 1100 Soldiers, will be conducting a large scale combined arms live fire exercise (CALFEX) at the end of August. That mission is titled OPERATION KIRCHOLM (unclassified) This will be a huge opportunity for my team to train and grow. It may also be a large push through traditional and social media to reassure our European allies of our commitment to their mutual defense. I will keep you all up to date on that exercise as it approaches.

Thank you,

Paul

7/31

Todd and team,

Good afternoon, I have continued to conduct inventories on the B BTRY equipment. I took the Army physical fitness test with my Soldiers this morning. I put in an excellent performance, leading by example. I am really happy with how hard many of our maintenance Soldiers work. I have attached a few pictures of a serious operation where they are working on an engine outside of one of our Howitzers. I have been informed that I will be taking command on Monday. I will take lots of pictures of the ceremony and keep you all up to date.

Thank you,

Paul

8/3

CLG Team,

NATO’s Enhanced Forward Presence (eFP) is an allied forward deployed defense and deterrence military posture in Eastern Europe to protect and reassure NATO’s Eastern member states of their security. Following Russia’s annexation of Crimea and War in Donbass, NATO member states agreed at the 2016 Warsaw summit to forward deploy four multinational battalion battle groups to NATO members most at risk of possible Russian attack or invasion. These 4 battalion battle groups are currently deployed to Poland-led by the US, Estonia-led by the UK, Latvia-led by Canada, and Lithuania led by Germany.

 Battle Group Poland (BGP) consists of a US combined-arms battalion (including Tanks and Infantry), a US Field Artillery Battery (currently B BTRY, RFS, 278^th ACR of the TNARNG which I shall assume command of on Monday at 0900), a Sabre Squadron from the UK Royal Scots Dragoon Guards (Scouts), a Croatian rocket artillery battery, and an ADA company from the Romanian Army. Battle Group Poland is currently conducting military operations based out of Bemowo Piskie, Poland at Bemowo Piskie Training Area (BPTA). Our objectives are to conduct realistic training designed to showcase to our allies and Russia our military capabilities. Our end state is we will be successful in demonstrating our commitment to the NATO alliance and prevent Russian aggression in Poland and our other allies.

 I am honored and humbled to be given the opportunity to command America’s most precious resource, over 100 of her Sons and Daughters, as we train to conduct combat operations in Poland. “There is nothing stronger than the heart of a volunteer.” — Gen. James H. Doolittle. Our Soldiers stand ready to deploy, engage, and destroy the enemies of the United States of America in Close Combat. Our troops have taken the Motto of the 278^th Armored Cavalry Regiment to heart by volunteering for this mission. Our motto is: “I volunteer, Sir!”

 Thank you,

Paul

The Physical Disability Review Board was created by federal law with the passage of the Dignified Treatment of Wounded Warriors Act in 2008. The DTWWA made several significant changes to the care of wounded veterans. First, the law required the military branches to use the same disability determination rating scale as that used by the VA. Second, the law expanded the care available to injured service members after their military service. This included changes in treatment in military and civilian facilities for a variety of conditions, including Traumatic Brain Injury (TBI) and Post-Traumatic Stress Disorder (PTSD). Third, the new law required comprehensive plans to address TBI and PTSD. Fourth, the law directed the Secretary of the Department of Defense (DoD) to establish physical disability review boards to review disability determinations meeting certain criteria and timeline requirements. The law also addressed the quality of housing provided to patients by requiring improved standards.¹

After the law passed, the DoD issued instruction 6040.44 which “establish[ed] policies, assign[ed] responsibilities, and provide[d] procedures for PDBR operation and management as required by section 1554a of Title 10, United States Code.”² The PDBR’s mandate is to: “reassess the accuracy and fairness of the combined disability ratings assigned former service members” who meet certain criteria.³ Those criteria are summarized here:

1. Service member was separated with an original combined disability rating of 20% or less.
2. Service member separated between September 11, 2001, and December 31, 2009, due to unfitness for continued military service.
3. Service member was not originally found eligible for retirement. This includes Reserve component service members.⁴

The PDBR will review the disability determination to determine if the veteran should have been awarded a higher combined disability rating. The PDBR will look at evidence such as medical records from the veteran’s military record, medical records from civilian life before joining the military, a statement of the veteran, letters from the veteran’s military colleagues or family members discussing the veteran’s injury or illness, and a recent health screening of the veteran.

DoD Instruction 6040.44 contains several definitions which are useful for veterans considering applying to the PDBR.⁵ The section defines: “combined disability ratings; consistency reviews; construed cases; DES; PEB; physical disability; QAP; and VASRD.”

The benefits for a successful PDBR application can be substantial for qualified veterans. This includes:

1. Monthly disability retirement pay, retroactive to the date of the veteran’s discharge. The retroactive payment should be in a calculated lump sum. Then monthly pay will go forward. Please note that by law, veterans may not receive both VA disability pay and military medical retirement pay. There is a $1 for $1 trade amount by which the retirement pay is not actually collected by the veteran, but the VA disability pay is. This is still a good deal for the veteran in that VA disability pay is tax free while military retirement pay is taxable.
2. The veteran and her/his family will be eligible for DoD Tricare healthcare coverage, retroactive included. This also gives healthcare coverage to eligible dependents.
3. The veteran may choose to purchase the survivor benefits plan. This would require the veteran to pay retroactive amount to make coverage current.
4. The veteran would also have all the rights and privileges of a retired veteran, including space available travel, exchanges, commissaries, and whatever is recognized by states and private companies.

Hypothetical case A: John Doe separated from the Army in 2010 with a 20% disability rating. John was not originally eligible for military retirement. Can John apply to the PDBR? No. John may not apply because his discharge date of 2010 is after the limited timeframe of the PDBR. Note, John may be able to secure relief through other avenues such as an application to the VA for disability or a different Army review board.

Hypothetical case B: Jane Smith separated from the Navy in 2008 with a 40% disability rating. Jane was given a military medical retirement, yet she thinks it was not a high enough rating. Can Jane apply to the PDBR? No, Jane cannot apply because she was already given a military retirement. In order to dispute the rating given, Jane would have to apply to a different Navy review board. Jane also might want to apply to the VA for disability if she has not already done so. Also, even if Jane already receives VA disability, she may want to apply for other conditions if her disabilities have become worse.

Hypothetical case C: Steve Sergeant separated from the Marine Corps in 2005 with a 10% disability rating. Steve was not given a medical retirement. Can Steve apply to the PDBR? Yes, if Steve has not previously applied. The DoD interpretation of the DTWWA determined that each eligible veteran may apply to the PDBR only once. After that application, the Veteran may be able to apply to other service review boards or appeal the case to certain courts. The PDBR is required to provide a final determination letter at the end of the PDBR process that explains what recourse a dissatisfied veteran may have.

According to the PDBR fact sheet, there are an estimated 77,000 veterans that fit the PDBR eligibility criteria.⁶

See also: https://health.mil/Military-Health-Topics/Conditions-and-Treatments/Physical-Disability/Disability-Evaluation/Physical-Disability-Board-of-Review

If you think you may be an eligible veteran, I encourage you to contact me at 615-490-6020 or submit a question through our website to determine how you can get the benefits that you deserve.

________________________

¹ https://www.congress.gov/bill/110th-congress/senate-bill/1606

² https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/604044p.pdf

³ Id.

⁴ Id.

⁵ Id.

⁶ https://health.mil/Military-Health-Topics/Conditions-and-Treatments/Physical-Disability/Disability-Evaluation/Physical-Disability-Board-of-Review

The U.S. Department of Veterans Affairs administers disability compensation that veterans have for illnesses or injuries which were caused by, or have been made worse during, active military service. The compensation may include financial support and other benefits such as health care.  Click here for more information on eligibility requirements for VA disability.

If you believe you are eligible for Veterans Affairs disability, the first step is to gather any supporting documentation for your claim. You will need evidence such as military records related to the injury or illness at issue, your medical treatment records, and your DD214 or other separation documents. Fill out your claim form completely and include all the relevant evidence. Today, you have several options for how you can file a claim:

1. You can file online at https://www.va.gov/disability/how-to-file-claim/.
2. Mail the claim form in.
3. Apply in person.
4. Consult with a trained professional.

After filing the claim, you do not need to take any further action unless you receive follow up communication from the VA. According to the VA’s website 111.5 days is the average number of days it took the VA to complete disability-related claims in April 2019.

The Disability Decision Letter

The VA’s disability decision letter is organized in a format that has four major sections: 1) an introduction, 2) a decision, 3) a listing of evidence considered, and 4) reasons for the decision. When examining the decision letter you receive, the first thing you should do is read the letter to determine if there have been any mistakes made either by you in not including all relevant information, or by the VA in overlooking something that was included. For example, are the records correct in the introduction section that show the time you served in the military?  Or, what was the date you filed your original claim?

When reading the decision section, note the reasons the VA claims for their decision. Here the letter will describe if each claimed disability was granted, and if granted, the percentage awarded from 10% to 100% in increments of 10, or if the claimed disability was denied. The decision section is short, and only gives one sentence for each claimed disability.

When examining the evidence section, think long and hard about whether you have in your possession or believe other documents might exist that could help your case. Helpful evidentiary documents include your service treatment records, your VA screenings completed by a company contracted by the VA, VA forms that may apply (such as VA Form 21-series in support of filing for certain types of disabilities), your private medical records, X-rays, records of injury or illness while on active duty (such as reports from treatment at a troop medical center), physical profile information, or other military medical records.

The VA can only decide your disability claim based on the evidence they find and you find. Thus, if you were injured during a parachute jump in 2005, yet there is no record of this injury listed in the evidence section, then the VA has no way of knowing that such injury is service connected and will thus deny the disability claim(s) that were related to that parachute incident.

Reasons for Decision

The Reasons for Decision section is the longest portion of the letter from the VA. When reading that section, look for the regulations (CFR) that support the actions the VA takes. For example, the letter might have a section stating, “When an intent to file is properly submitted, and a substantially complete application for disability compensation and related compensation benefits is received within one year of the intent to file, the claim is considered filed as of the date we received the intent to file (38 CFR 3.400).” Thus, to understand where that provision comes from, you could read 38 CFR 3.400 which should state something similar to what is claimed in the letter. Read your evaluation percentages and determine if you agree with the findings of the VA. When the VA grants a disability rating, they explain the percentage granted and state what that finding is based on. They will then cite to the portion of the CFR that describes the criteria for that % of disability evaluation. They may state that a higher rating is not warranted because the evidence did not show that you had more serious symptoms.

A common reason many VA disability claims are denied is because the VA determines the injury is not service connected. They may use language such as, “No evidence shows this injury occurred while on active duty, and the post separation file is silent for those type of complains as well.” For the VA to award disability, you must show a nexus, or link between your claimed issue and an event, injury, or disease which occurred while in the service. Your treatment records during your time in service or within a year of completing the service should show a complaint, treatment, or diagnosis related to the disability for which you are applying. Importantly, even if your claim is denied, the VA will include favorable findings identified in this decision. These favorable findings could show that you do in fact have a diagnosis for the injury or illness for which you applied.

Systematic Approach for Appeal

Overall, the VA disability benefits decision letter may be difficult for many or most veterans to understand. However, by taking a systematic approach and breaking down the information that is provided in each section, you can better understand why the decisions were made the way they were in your letter and what you could do to best succeed on your appeal. As a military officer myself, I analogize this process to the Military Decision-Making Process (MDMP). During MDMP, one of the most important steps is mission analysis. This is where the team reads the mission that the higher headquarters has established, and they begin to dissect all the parts of the operation within the scope of their roles. Treat reading the VA letter as mission analysis. Find out if there is anything that should be included in your application that has not already been included. Find out if the VA made a mistake by overlooking an important piece of evidence. Perhaps you need to go to a civilian or VA doctor to be treated and can include this next visit in your appeal. If you disagree with the VA’s decision, consult with a close friend or an attorney experienced in VA disability appeals and brainstorm your plan of attack. Just as many military operations were not successful until numerous hours of planning before the attack, so too your VA disability appeal may require some strategic thinking before filing the appeal. This process begins by reading and understanding your VA disability claim decision letter.

Understanding USERRA

The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) is a federal law designed to protect the civilian employment of active, reserve, and national guard military personnel in the United States called to active duty.¹ The three major purposes of USERRA are protection against discrimination, minimize disruption by providing for prompt reemployment, and protection of one’s pre-deployment job.² The law clarifies that it is illegal for employers to discriminate against employees because of past, present, or future military service

Enforcement

The U.S. Department of Labor, Veterans Employment and Training Service (VETS) is authorized to investigate and resolve complaints of USERRA violations.³ Eligible employees may file a complaint with VETS. If VETS investigates the complaint and is unable to resolve the issue, the case may be referred to the DOJ. The DOJ may represent the claimant at no cost. In reality, the DOJ does not litigate USERRA cases often. Employees may bypass the VETS procedures and file a civil action against an employer for violations of USERRA.

In a highly unusually provision, USERRA expressly states statutes of limitations are inapplicable in USERRA cases.⁴ Despite the text of that provision, other legal doctrines such as estoppel or latches may apply that will limit a potential plaintiff’s ability to successfully sue decades after a violation.

Staub v. Proctor Hospital, the only U.S. Supreme Court USERRA Case

The United States Supreme Court showed that USERRA violations are actionable in a case where a former employee, who was a member of the Army Reserve, sued for USERRA violations.⁵ Staub’s civilian immediate supervisor and his second supervisor were both hostile to his military obligations.⁶ Both supervisors made numerous comments such as Staub’s “military duty had been a strain on the department” and asked another employee to help “get rid of him”.⁷ Staub was later fired, and he challenged this action through the company’s grievance process. Staub then sued under USERRA, “claiming that his discharge was motivated by hostility to his obligations as a military reservist.”⁸ A jury found for Staub and he was awarded damages. The Seventh Circuit reversed holding the employer was entitled to judgment as a matter of law. The issue presented to the Supreme Court was whether the employer was entitled to judgment as a matter of law based on a “cat’s paw” discrimination claim.

In an 8-0 decision, the Court found for Staub and held: “if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA.”⁹ The Court reasoned that the employer was not entitled to judgment as a matter of law based on four reasons:

1) Both of Staub’s supervisors were acting within the scope of their employment when they took actions against Staub that lead to him being fired.

2) There was sufficient evidence in the record that the supervisors’ actions were motivated by their hostility toward Staub’s military obligations.

3) There was evidence that the supervisors’ actions were causal factors.

4) There was evidence that both supervisors had specific intent to cause Staub to be terminated.

The Supreme Court’s decision in Staub clarified the scope of USERRA protection in employment discrimination law and is still the seminal case on the issue to this day.

Conclusion

USERRA is federal law that offers protection to military members of the active, reserve, and national guard components called to active duty. The law provides protection against discrimination, provides for prompt reemployment, and protection of pre-deployment job. VETS is authorized to investigate complaints or employees may bypass that system with a civil lawsuit. If you think you have a USERRA issue, I encourage you to speak with a licensed military l attorney to understand your options

_____________________________

1 38 U.S.C. §§ 4301-4335.

2 See 38 U.S.C. §4301.

3 38 U.S.C. §4321.

4 38 U.S.C. §4327(d).

5 Staub v. Proctor Hosp., 562 U.S. 411 (2011).

6 Staub, 562 U.S. at 414.

7 Id.

8 Id. at 415.

9 Staub, 562 U.S. at 422.

The Uniform Code of Military Justice (UCMJ) is located in Chapter 37 of the United States Code.¹It is Federal law that applies to the U.S. Military. The UCMJ “defines the military justice system and lists criminal offenses under military law.”² On January 1, 2019, major changes to the Uniform Code of Military Justice took effect.³ According to the United States Army these changes include: “modernizing definitions for many offenses, adjusting maximum penalties, standardizing court-martial panels, creating new computer-crime laws, and much more.”⁴ A recent Military Times headline describes these changes as “the biggest update to UCMJ in decades”.⁵

Significant criminal offense changes include:

• Replacing the offense of adultery with “extra-marital sexual conduct.” The offense was also broadened to include all types of sexual acts.
• Adding penalties to those in “positions of special trust” that abuse authority over recruits and trainees in Article 93a.
• New cyber crimes in Article 123.
• A new fraud crime in Article 12a relating to credit and debit card fraud.
• The addition of cyberstalking in Article 130.
• A modern definition for the crime of burglary; and
• A new offense for illegal retaliation in Article 132.⁶

Other major changes include:

• Expanded ability of a bench trial to hear more court martial cases. This change will allow more cases to be tried by a single judge instead of a panel.
• Increased subpoena power given to military judges. This change is important because it allows military judges the ability to get access to records in cases where normally those types of records would not be easy to access; and
• An increased penalty for “wearing unauthorized medals of valor.”⁷

Before the recent changes went into effect on January 1, 2019, there has been some high-profile debate about the current state of military justice. This debate has included critiques of how much punishment commanders were handing out by then Secretary of Defense Jim Mattis.⁸  A scandal of active duty marines sharing nude pictures of female colleagues garnered public attention in March, 2017.⁹  Congress has been particularly concerned about revenge porn and other crimes of a sexual nature in the Military.¹⁰ These 2019 changes to the UCMJ are responses in part to these and other concerns about the current system of military justice.

As in many areas of the law, some pundits will claim the recent changes are an excellent step forward. Others will claim the changes were insufficient. In my opinion, many of the changes are positive in that they modernize several of the criminal offense definitions in the UCMJ to better reflect our changing society. These changes may also allow commanders more discretion in keeping good order and discipline in their formations.

References

¹ https://jsc.defense.gov/Portals/99/Documents/UCMJAsOfFY17NDAA.pdf?ver=2017-02-07-123603-210

² https://www.military.com/join-armed-forces/the-uniform-code-of-military-justice-ucmj.html

³ See https://www.militarytimes.com/news/your-army/2019/01/15/heres-what-you-need-to-know-about-the-biggest-update-to-ucmj-in-decades; https://taskandpurpose.com/military-crimes-ucmj-changes-2019; https://www.army.mil/article/215594/2019_brings_changes_to_military_justice_system

⁴ https://www.army.mil/article/215594/2019_brings_changes_to_military_justice_system

⁵ https://www.militarytimes.com/news/your-army/2019/01/15/heres-what-you-need-to-know-about-the-biggest-update-to-ucmj-in-decades/

⁶ https://www.army.mil/article/215594/2019_brings_changes_to_military_justice_system; https://www.militarytimes.com/news/your-army/2019/01/15/heres-what-you-need-to-know-about-the-biggest-update-to-ucmj-in-decades/

⁷ https://www.army.mil/article/215594/2019_brings_changes_to_military_justice_system

⁸ https://www.militarytimes.com/news/your-military/2018/09/10/ucmj-crackdown-why-mattis-thinks-commanders-have-gone-soft-on-misconduct

⁹ https://www.militarytimes.com/news/pentagon-congress/2017/09/20/congress-poised-to-outlaw-revenge-porn-in-the-military/

¹⁰ https://www.militarytimes.com/news/pentagon-congress/2017/09/20/congress-poised-to-outlaw-revenge-porn-in-the-military