Justia Military Law Opinion Summaries

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Euzebio served in the U.S. Navy, 1966-1969, including two tours of duty in Vietnam, where he was exposed to Agent Orange. In 2009, Euzebio began experiencing problems swallowing. In 2011, medical examinations and testing by private physicians indicated that he had benign thyroid nodules. The Veterans Court affirmed the Board of Veterans’ Appeals’ denial of Euzebio’s entitlement to service connection for a thyroid condition due to exposure to Agent Orange. The Board noted that the Agent Orange Act requires that when the Secretary determines that a presumption of service connection based on herbicide exposure is not warranted for certain conditions, he must consider reports of the National Academy of Sciences (NAS), 38 U.S.C. 1116; Euzebio’s thyroid disorder was not among the conditions listed by the Secretary for presumptive service-connection.The Federal Circuit vacated. The Board is required to consider relevant documents within its constructive possession; all relevant and reasonably connected VA-generated documents are part of the record, constructively known by the VA adjudicator. The Veterans Court applied an erroneous legal standard when it concluded the Board did not have constructive possession of the NAS Update 2014. While the VA has not published that Update in the Federal Register, it appears on its website. Update 2014 includes statements that, “thyroid conditions overall showed an indication of increased risk with herbicide exposure” and that “consistent observations of exposures to herbicide agents” indicated that they were “related to perturbations of thyroid function.” View "Euzebio v. McDonough" on Justia Law

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Giles served on active Army duty, 1976-1982. He first claimed a service-connected nervous condition with the VA in March 1984; he was diagnosed with a personality disorder. While his claim was pending, he reported for Reserve training in June 1984. He soon was hospitalized, was diagnosed with organic delusional syndrome, and was discharged in November 1984. The VA denied his claim. In 1985, Giles was hospitalized, with an admitting diagnosis of schizophrenia. Upon discharge, he was diagnosed with bipolar disorder. The VA denied his request to reopen. The Board of Veterans’ Appeals affirmed in 1987, finding that “[a]n acquired psychiatric disorder was neither incurred in nor aggravated by service nor may a psychosis be presumed to have been incurred in active military service.”In 1995, Giles claimed service-connected PTSD. The VA awarded him service connection for bipolar disorder, effective in 1995. In 2012, Giles filed a request to revise the 1987 Board decision for clear and unmistakable error because the Board failed to recognize Giles’s claim on a presumptive basis for his 1984 diagnosis. The Board rejected the motion, stating, that 1987 regulations provided that the presumption of service incurrence of certain diseases, such as psychosis, did not apply to a period of active duty for training; a person serving on active duty for training was not considered a “veteran” during that service. The Veterans Court and Federal Circuit affirmed; “psychoses,” under 38 C.F.R. 3.309(a), refers to a category of diseases; whether diseases falling within this category are the same is a factual question outside of the courts' jurisdiction. View "Giles v. McDonough" on Justia Law

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Sharifi alleges the U.S. Army took his land when it built Combat Outpost Millet in Afghanistan in 2010. The government asserted that Sharifi’s Fifth Amendment complaint was “vague and ambiguous” because it did not specifically identify the property interest that the government allegedly took, that Sharifi had not provided a legal description of the land, a deed, or other documents that would allow the government to identify the location. The Claims Court instructed Sharifi to file an amended complaint. Sharifi alleged that government records, verified by the District Governor of Arghandab, showed that his grandfather owned the land on which the Army built COP Millet: Ownership of the land passed to Sharifi and his siblings, who subdivided the land by a 2004 inheritance agreement. The government submitted six declarations, including several witness declarations and an expert declaration on Afghan law. The Claims Court dismissed Sharifi’s amended complaint for failure to show a cognizable property interest.The Federal Circuit affirmed. The government records attached to Sharifi’s amended complaint and the 2004 inheritance agreement do not constitute proof of land ownership under the laws of Afghanistan. Even accepting as true all factual allegations in Sharifi’s amended complaint, the amended complaint does not contain sufficient facts to state a plausible takings claim. View "Sharifi v. United States" on Justia Law

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White has been employed as a commercial airline pilot since 2005 and has also served in the U.S. Air Force since 2000, first on active duty and now on reserve duty. As a reservist, he is required to attend periodic military-training sessions. White has taken periods of short-term military leave, usually for a day or two at a time, during which he did not receive pay from United. Under United’s collective bargaining agreement, pilots receive pay when they take other short-term leaves of absence, such as jury duty or sick leave. United also maintains a profit-sharing plan for its pilots that is based on the wages they earn; pilots who take paid sick leave or paid leave for jury duty earn credit toward their profit-sharing plan, while pilots who take short-term military leave do not. White initiated a class action under the 1994 Uniformed Services Employee and Reemployment Rights Act (USERRA), which is intended to prevent civilian employers from discriminating against employees because of their military service, 38 U.S.C. 4301(a). The district court dismissed White’s complaint.The Seventh Circuit reversed. USERRA’s mandate that military leave be given the same “rights and benefits” as comparable, nonmilitary leave requires an employer to provide paid military leave to the same extent that it provides paid leave for other absences. Paid leave falls within the “rights and benefits” defined by the statute. View "White v. United Airlines, Inc." on Justia Law

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Petitioner, a defense attorney with no client, petitioned to reverse a procedural ruling excluding the public from a classified hearing in an appeal filed by other attorneys who, like plaintiff, have no client. Because most proceedings for Guantanamo Bay detainees are open to the public, the attorney's desire to watch the hearing would not normally have been a problem. However, because this particular hearing concerned classified information, the military judge closed it.The DC Circuit noted that the attorney may or may not have prudential standing, but the court need not address the issue because the court can dismiss the case based on lack of subject matter jurisdiction. In this case, the attorney ultimately appeals the military judge's decision to close the hearing. The court explained that the attorney does not appeal a conviction, an actual final judgment, but rather a decision. Finally, the court rejected the attorney's argument under the collateral order doctrine. View "Sundel v. United States" on Justia Law

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The Ninth Circuit affirmed the district court's denial of habeas relief to petitioner, who is challenging his 2012 court-martial conviction for one count of aggravated sexual assault and two counts of wrongful sexual conduct. In United States v. Hills, 75 M.J. 350 (C.A.A.F.2016), which was decided after petitioner's conviction became final, the Court of Appeals for the Armed Forces held unconstitutional a pattern jury instruction on Military Rule of Evidence (M.R.E.) 413 under which jurors may consider evidence of any one charged sexual offense as showing the defendant's propensity to have committed any of the other charged sexual offenses.Although Hills announced a new rule which held that the use of charged sexual offenses to show propensity to commit other charged sexual offenses violated the presumption of innocence and right to have all findings made clearly beyond a reasonable doubt, as guaranteed by the Fifth Amendment, the panel held that the rule does not fall under either exception for nonretroactivity because it is neither a substantive rule nor a watershed rule of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding. Therefore, Hills does not apply retroactively in petitioner's case. View "Lewis v. United States" on Justia Law

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The Eighth Circuit affirmed the district court's dismissal of a habeas corpus petition under 28 U.S.C. 2241 where petitioner was convicted in 2012, after trial by general court-martial, of rape committed in 1998. At the time of petitioner's conviction and direct appeals, there was no statute of limitations for prosecution of rape under the Uniform Code of Military Justice (UCMJ). In 2018, the Court of Appeals for the Armed Forces held for the first time that a five-year statute of limitations applied to rape in United States v. Mangahas, 77 M.J. 220, 222-24 (C.A.A.F. 2018). However, in United States v. Briggs, 2020 WL 7250099, at 2 (U.S. Dec. 10, 2020), the Supreme Court held that there is not a statute of limitations under the UCMJ for rapes committed between 1986 and 2006. Therefore, the court held that petitioner's conviction was not untimely. View "Hill v. Rivera" on Justia Law

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Dual-status military technicians are “Federal civilian employees” but must maintain National Guard membership and wear the appropriate military uniform while performing civilian technician duties. They must meet certain military requirements.Newton worked as a National Guard dual-status technician, 1980-2013, also serving as a New Jersey Army National Guard member, receiving separate military pay. In 2013, Newton retired from both. He received a pension from the Defense Finance and Accounting Service for his National Guard service and an annuity paid by the Office of Personnel Management for his dual-status technician service. The Social Security Administration (SSA) notified Newton that he qualified for retirement benefits, subject to a reduction under the Windfall Elimination Provision (WEP), 42 U.S.C. 415(a)(7)(A), because he received a separate pension payment “based in whole or in part upon" earnings not subject to Social Security tax, his civil service annuity. Newton argued that his civil service pension triggered an exception to the WEP for uniformed service.The Third Circuit held that Newton’s benefits are subject to a WEP reduction. Newton has always received two separate salaries and now receives two separate pensions. At most, Newton’s OPM civil service pension is based on service he provided while also serving in the National Guard, but not for “service as a member of a uniformed service.” View "Newton v. Commissioner Social Security" on Justia Law

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Murphy served in the Army, 1971-1974. In 2003, he sought disability benefits for PTSD; the VA regional office (RO) denied this claim because Murphy lacked a PTSD diagnosis. A private doctor had diagnosed Murphy with schizophrenia in 1982. In 2006, Murphy submitted another claim for disabilities, including schizophrenia. He requested that the RO reopen his PTSD claim. The RO denied the claim for schizophrenia for failure to show service connection and declined to reopen the PTSD claim for lack of material evidence. In 2007-2012, the RO denied multiple requests to reopen both claims.A 2012 request to reopen listed only PTSD. The VA physician found no PTSD but noted the schizophrenia diagnosis. The RO denied Murphy’s request to reopen his PTSD claim. Murphy filed a Notice of Disagreement. The cover page referred to PTSD; a handwritten attachment mentions “schizophrenia” and “PTSD” multiple times. His Form 9 included numerous mentions of both “PTSD” and “schizophrenia.” The RO determined that Murphy was also seeking to reopen his schizophrenia claim but denied that request for lack of new and material evidence. Murphy did not appeal. The Board remanded the PTSD claim; the RO maintained its denial.The Veterans Court determined that the Board correctly found it lacked jurisdiction over the schizophrenia claim, which was a request to reopen, not an initial claim. The Federal Circuit affirmed. Murphy’s request to reopen cannot be construed as seeking to reopen his schizophrenia claim. Although the lenient-claim-scope rule applies to requests to reopen, Murphy demonstrated an understanding that the conditions would be addressed separately. View "Murphy v. Wilkie" on Justia Law

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Perry served in the Wisconsin Army National Guard from January 1977 to March 1977, with active duty for training in February-March 1977. Active duty for training is “full-time duty in the Armed Forces performed by Reserves for training purposes,” 38 U.S.C. 101(22). Medical Board examiners at his March 1977 separation opined that enuresis and incontinence existed prior to service. Perry died in 2014. There was no claim for service-connected disability during his lifetime.The Board of Veterans’ Appeals held that Mrs. Perry was not eligible for nonservice-connected death pension benefits because Perry did not have active duty service during a period of war nor did he have a service-connected disability, as required by 38 U.S.C. 1541, that Mr. Perry did not attain veteran status, and that he “was not service-connected for any disability at the time of his death, and there is no evidence that his death was in any way related to" his 1977 military service. The Veterans Court and Federal Circuit affirmed. Service in the state National Guard including a period of active duty for training, without disability incurred or aggravated in line of duty, does not achieve “veteran” status for these purposes. View "Perry v. Wilkie" on Justia Law