Justia Military Law Opinion Summaries

Following nomination by the President and confirmation by the Senate, Brigadier General Schwalier was scheduled to be appointed to major general in 1997. His appointment was delayed and the President later chose not to appoint him, 10 U.S.C. 624(c). Schwalier argued that he was appointed by operation of law after the delay of his appointment expired and before the President’s decision. The Federal Circuit affirmed the district court finding that the appointment process for senior military officers does not allow for automatic appointments, and a President’s decision not to appoint an officer is unreviewable. The Air Force and the Department of Defense did not act arbitrarily or capriciously by not retroactively appointing Schwalier. View "Schwalier v. Hagel" on Justia Law

Navarro served in the Army from 1958-1960. He is not a combat veteran, but served near the demilitarized zone after the Korean War. In 2005, Navarro sought service connection for PTSD. He established the condition under 38 C.F.R. 4.125(a). He provided testimony about hearing shots, seeing injured soldiers, and hearing noises while on night guard duty. The Board of Veterans’ Appeals denied the claim in 2008. While appeal was pending, the VA amended 38 C.F.R. 3.304(f) with respect to evidence required to establish claimed in-service stressors for PTSD claims. The Veterans Court vacated. On remand, the Board found that revised 3.304(f) did not apply because Navarro had been diagnosed by a therapist, not a “VA psychiatrist or psychologist” and that Navarro was not entitled to a VA medical examination because “none of his claimed stressor events have been sufficiently corroborated by credible supporting evidence and his account of having a continuity of PTSD symptomatology since service is not deemed credible.” The Veterans Court affirmed. The Federal Circuit remanded for determination of whether Navarro’s “claimed stressor[s are] consistent with the places, types, and circumstances of the veteran’s service.” If so, he is entitled to examination by a VA psychiatrist or psychologist. View "Sanchez-Navarro v. McDonald" on Justia Law

Haselwander, an Army veteran, served in Vietnam and was honorably discharged in 1974. During his tour of duty Haselwander was wounded and knocked unconscious when an enemy rocket exploded near his sleeping quarters. He was picked up by medical personnel and treated for shrapnel wounds. He was called back to duty as soon as he had been bandaged. Those who treated his wounds never had a chance to complete paperwork, so Army records do not show that he was wounded in hostile action. In 2007, Haselwander sought to correct his records so that he could receive the Purple Heart, which is awarded to any member of the Armed Forces who is wounded or killed in action. Haselwander provided corroborative references and photographs, showing him with bandages on his face and shoulder and wearing a dispensary-issued scrub top. The Army Board for Correction of Military Records rejected the application, stating that Haselwander failed to show that he had been “treated for a wound that was sustained as the result of enemy action.” Haselwander unsuccessfully sought reconsideration, including a letter from another veteran who was wounded and treated at the same time and official Brigade and Platoon reports, detailing events on the day he was wounded. The district court affirmed. The D.C. Circuit reversed, stating that the: “Board’s decision defies reason and is devoid of any evidentiary support.” View "Haselwander v. McHugh" on Justia Law

Pursuant to a long-standing local ordinance, the City of Plymouth, Indiana pays its police officers “longevity pay” after each work anniversary, calculated by multiplying $225 by the number of years that the officer has been on the force. Faced with financial difficulties in 1989, Plymouth enacted a second longevity pay ordinance, which prorates longevity pay for officers who take a leave of absence during any given year, including for military service. During officer DeLee’s twelfth year on the job, he missed nearly eight months of work while serving in the Air Force Reserves. When he returned, Plymouth paid him one-third of his full longevity payment for that year. DeLee sued, arguing that longevity pay is a seniority-based benefit to which the Uniformed Services Employment and Reemployment Rights Act, 38 U.S.C. 4301–4335, entitles him in full. The district court granted summary judgment in favor of Plymouth. The Seventh Circuit reversed, reasoning that Plymouth’s longevity benefit is more appropriately characterized as a reward for lengthy service, rather than as compensation for work performed the preceding year, USERRA guarantees DeLee a full longevity payment for his twelfth year of employment. View "DeLee v. City of Plymouth" on Justia Law

Blubaugh served in the Army, 1964-1966 and was a gunner in Vietnam. In 1988, he sought service connection for multiple medical conditions, including post-traumatic stress disorder (PTSD). The VA denied service connection, finding that his VA psychological examination did not support a diagnosis of PTSD. Blubaugh did not appeal, but in 1992, sought to reopen his claim. The VA concluded that a second examination did not support a PTSD diagnosis and noted the “absence of a definitive confirmable stressor.” In 2008, Blubaugh filed a second request to reopen. Unlike his previous submissions, this request included a statement describing his experiences in Vietnam and post-service difficulties. The VA also received, for the first time, medical documentation showing a positive diagnosis of PTSD. The VA granted service connection for PTSD and assigned a 10 percent disability rating effective 2008. The Federal Circuit affirmed. The effective date for a disability rating is generally determined by the date the disabling condition arose, or the date the claim was submitted, whichever is later. An exception for claims granted based on certain service department records that were associated with the veteran’s claims file after the claim was first decided does not apply to Blubaugh’s case. View "Blubaugh v. McDonald" on Justia Law

O’Bryan served in the Marine Corps from 1973-1976. His eye problems were not noted upon his entry into service. Upon discharge, he was listed as having 20/20 vision. In 1977, he filed a claim for service-connected optic disease. In medical examinations, he variously reported that his vision started to blur in1974 or 1976. He was legally blind due to Leber’s optic atrophy within one year of discharge. Certain conditions manifesting within one year after discharge are treated as though manifested during service, 38 U.S.C. 1112(a). O’Bryan argued that his symptoms began during service; that he is suffering from a “disease”; and that, because his condition was not noted upon entry, he is entitled to a presumption that the disease was incurred in service, 38 U.S.C. 1111. The VA regional office denied O’Bryan’s claim because Leber’s is not a “disease,” but a “hereditary disorder.” The Board of Veterans’ Appeals affirmed. In 2010, O’Bryan attempted to reopen the case, but the Board rejected his contention that it had committed clear and unmistakable error. The Veterans Court affirmed. The Federal Circuit vacated, holding that the lower court misinterpreted the law on when a congenital or developmental condition is a non-compensable defect. View "O'Bryan v. McDonald" on Justia Law

Upon the divorce of Mother and Father, Mother was awarded custody of the parties’ two children, and Father was granted parenting time. Thereafter, Mother joined the military and was assigned to Fort Benning, Georgia for a one-year period. Pursuant to Neb. Rev. Stat. 43-2929.01, which affords procedural protections in cases involving child custody and parenting time to military parents affected by mobilization or deployment, the district court permitted the children to relocate to Georgia with Mother for the remainder of her temporary assignment. Father appealed. The Supreme Court dismissed the appeal, holding that the Legislature did not intend for appellate review of truly temporary orders entered pursuant to section 43-2929.01(4)(a), and therefore, the Court lacked jurisdiction over the appeal. View "Huskey v. Huskey" on Justia Law

Norma married veteran Glenn Dodson in 1949. They remained married until Glenn’s death in 1992 from cardiac arrhythmia due to amyotrophic lateral sclerosis (ALS). Norma did not seek Dependency and Indemnity Compensation (DIC) benefits as the “surviving spouse” of a veteran whose death resulted from a service-related injury or disease, 38 U.S.C. 1310–1318. Her eligibility for DIC benefits terminated upon her remarriage at age 64 in 1994. The Veterans Benefits Act of 2003 amended Title 38 to authorize DIC benefits for surviving spouses who remarry after attaining age 57 but before enactment of the amendment. Norma, who was over the age of 57 when she remarried in 1994, did not seek DIC benefits during the amendment’s one-year window. During that time, ALS was recognized as a condition that could be service-related, though not presumptively so. In 2008 the VA established a presumption of service connection for ALS. In 2009, Norma filed an application for DIC benefits as Glenn’s widow. The regional office denied the claim. The Board of Veterans’ Appeals, the Veterans Court, and the Federal Circuit affirmed, finding the claim untimely and holding that the amendment did not contemplate shifting circumstances. View "Carroll v. McDonald" on Justia Law

Defendant appealed his conviction of one count of distributing child pornography and one count of possessing child pornography. An NCIS agent investigating online criminal activity of persons in Washington state found evidence of criminal conduct by defendant, a civilian, and gave the information to civilian law enforcement officials. On appeal, defendant argued that the fruits of the NCIS investigation into his online file sharing should have been suppressed because military enforcement of civilian laws is prohibited. In United States v. Chon, the court held that the Posse Comitatus Act (PCA), 18 U.S.C. 1385, prohibits Army and Air Force military personnel from participating in civilian law enforcement. The court reaffirmed Chon's holding that NCIS agents are bound by PCA-like restrictions on direct assistance to civilian law enforcement. In this case, the NCIS agent's actions amounted to direct assistance to civilian law enforcement and violated the regulations and policies proscribing direct military enforcement of civilian laws. The court found that the district court erred in denying defendant's motion to suppress where there was abundant evidence that the violation at issue has occurred repeatedly and frequently, and that the government believes that its conduct is permissible. The court remanded for further proceedings. View "United States v. Dreyer" on Justia Law

Beraud served on active duty in the U.S. Navy, 1974-1977, and in the reserves until 988. In 1985, Beraud filed a claim with a VA Regional Office for a headache disorder, allegedly caused by trauma suffered while on duty. Although Beraud did not appeal the RO’s denial of his claim, he sent a letter, indicating the location of additional service medical records. The RO never responded. The RO reopened the claim, but denied it on the merits in 1990, finding that Beraud did not incur the headache disorder, or aggravation thereof, during service. The RO did not refer to Beraud’s 1985 letter, nor did it mention the medical records that were the subject of the letter. Beraud did not appeal. The RO denied two later requests to reopen, finding that Beraud had not submitted new and material evidence. In 2004, Beraud submitted an informal claim for disability compensation for the same headache disorder. This time, the RO granted Beraud service connection and assigned a 50 percent disability rating, effective 2004. In 2010, the Board denied Beraud’s appeal, finding that the decisions on his 1985, 1990, 1992, and 2002 claims were final, so that an effective date prior to 2004 could not be granted. Beraud argued that his 1985 letter constituted new evidence, giving rise to a pending, unadjudicated claim. The Veterans Court affirmed. The Federal Circuit reversed. Because the VA failed to determine whether evidence Beraud timely submitted in 1985 claim was new and material under 38 C.F.R. 3.156(b), that claim remained pending, despite the subsequent final decision.View "Beraud v. McDonald" on Justia Law