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.

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.

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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.

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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