Justia Military Law Opinion Summaries

Antonellis, a member of the Navy Reserve since 1986, is a member of boththe Selected Reserve, a paid unit, and the Individual Ready Reserve, which is unpaid. From 2009 through 2011, Antonellis submitted 69 applications, but he was not assigned to any Selected Reserve billet and was instead assigned to a Volunteer Training Unit in the Individual Ready Reserve. He performed those duties without pay. In 2011 Antonellis filed suit under the Military Pay Act, 37 U.S.C. 206(a), asserting that, based on his outstanding service record and the standards described in the Commander’s guidance letter, he “has been clearly entitled to a pay billet” and that the decision not to assign him to a Selected Reserve pay billet was arbitrary. He sought more than $64,700 in back pay. The Claims Court dismissed the claim as nonjusticiable, because there were no standards by which it could review the Navy’s assignment decisions. The Federal Circuit affirmed. View "Antonellis v. United States" on Justia Law

Louis Burden, a Vietnam veteran, served on active duty in the Army from 1948 until 1968. He married Michele in a ceremonial marriage in April, 2004. Two months later, Burden died. In August 2004, Michele applied for dependency and indemnity compensation. A VA regional office denied her claim because she had not been married to Burden for at least one year prior to his death, 38 U.S.C. 1102(a). Michele asserted that she and Burden had been living in a common law marriage for five years prior to his death. The board acknowledged that she had provided some evidence to support her claim, but concluded that it did not constitute the “clear and convincing proof” required to establish a valid common law marriage under Alabama law. The Veterans Court and the Federal Circuit upheld the denial. State law, including state law evidentiary burdens, applies in determining the validity of a purported common law marriage View "Burden v. Shinseki" on Justia Law

USM builds military boats. Working with VT Halter, USM designed a special-operations craft with a hull made out of composite materials for use in competing for the Navy's “MK V Special Operations Craft and Transporter System Contract.” With its 1993 bid, VT Halter submitted drawings stamped with a “Limited Rights Legend” to invoke Defense Federal Acquisition Regulations Supplement Section 252.227-7013(a)(15), which limits governmental use and disclosure of certain information. VT Halter won the contracts and delivered 24 Mark V special-operations craft. In 2004, the Navy awarded University of Maine a research grant to improve the ride and handling of the Mark V and provided detailed design drawings of the Mark V to contractors, stamped with the DFARS Limited Rights Legend, but did not obtain VT Halter’s consent for disclosure. The Navy awarded Maine Marine a contract to design and construct a prototype Mark V.1. USM sued under the Federal Tort Claims Act, 28 U.S.C. 1346(b), alleging misappropriation of trade secrets. The district court awarded damages, but the Fifth Circuit held that the matter lay exclusively within the jurisdiction of the Court of Federal Claims under the Tucker Act, 28 U.S.C. 1491(a)(1). The Fifth Circuit vacated the judgment and ordered transfer. The Federal Circuit affirmed. View "U.S. Marine, Inc. v. United States" on Justia Law

Harkness, a reserve Commander in the Navy Chaplain Corps, was denied a promotion to the rank of Captain by an annual selection board. The Secretary of the Navy denied his request to convene a special selection board (SSB) to review that decision. Harkness filed suit, claiming that promotion policies and procedures for chaplains violated the Establishment Clause. The district court dismissed, citing failure to exhaust administrative remedies required by 10 U.S.C. 14502(g). The Sixth Circuit affirmed, holding that non-promoted officers must first petition the Secretary to convene an SSB. The Secretary must weigh certain factors, including whether an administrative error caused the original selection board not actually to consider the officer, or whether a material error caused the original board to mistakenly fail to recommend promotion. If the Secretary determines that an SSB is not warranted, the officer can seek review of that denial in federal court. The language of Harkness’s request apparently challenged only the composition of the board and fell short of giving the Secretary a meaningful opportunity to respond to Harkness’s constitutional contention. View "Harkness v. United States" on Justia Law

Yonek served on active duty in the Navy from 1973 to 1977 and in 1991-1992. In 1991, Yonek aggravated a preexisting injury to his right shoulder, leaving the motion of his arm permanently limited. The VA regional office granted service connection for the injury, assigning a rating of 10 percent. Over the next 17 years, Yonek underwent at least 15 examinations, measuring his range of motion for flexion, elevation of the arm in a forward direction, and abduction, elevation of the arm outward from the side of the body. The results showed a range of motion of anywhere between 80 and 180 degrees in flexion and 60 and 180 degrees in abduction. In 1999, the RO increased the rating to 20 percent, concluding that motion was limited to a point at or below shoulder level but past the midpoint between the side and the shoulder (between 45 and 90 degrees). The Board of Veterans’ Appeals denied his appeal. The Veterans Court held that diagnostic code 5201 only allows a single disability rating for each injured shoulder even though Yonek’s shoulder manifests limitation of motion with respect to both flexion and abduction. The Federal Circuit affirmed, finding that the schedule in 38 C.F.R. 4.71a only allows a single disability rating. View "Yonek v. Shinseki" on Justia Law

Bartlett, who served on active duty from 1943 to 1963, submitted a claim in 2002 to increase his rating for service-connected Post Traumatic Stress Disorder. The Board of Veterans’ Appeals issued its first final decision in 2005, increasing Bartlett’s rating from 30% to 100% and remanded to the regional office. After that decision, but before a decision on remand, Bartlett entered into a fee agreement with attorney Cameron, calling for a contingent fee of 20 percent of any past due VA benefits awarded on the basis of his claims. The regional office then increased Bartlett’s disability to 100%, effective April 2002, when Bartlett filed his claim. Cameron sought fees for the past-due benefits award. The regional office denied entitlement to attorney fees, finding that, because the decision was the Board’s first final decision in this claim, 38 U.S.C. 5904(c)(1) precluded entitlement to fees based on benefits arising from the decision. Cameron also appealed the assigned effective date. The regional office assigned a new date, approximately 15 months earlier, granted Bartlett $45,995.93 in past-due benefit, and set aside attorney fees for Cameron: 20% of the additional award occasioned by the change in the effective date. The Board, the Veterans’ Court, and the Federal Circuit affirmed. View "Cameron v. Shinseki" on Justia Law

Defendant moved to dismiss his federal grand jury indictment, charging him with one count of possessing child pornography, on double jeopardy grounds because he had been subject to nonjudicial proceedings (NJP) with the Coast Guard. At issue was whether the Double Jeopardy Clause prohibited civilian criminal prosecution of a servicemember who previously received NJP without being informed of or waiving his statutory right to reject such punishment and demand a court-martial instead. The court concluded that the inquiry for the Double Jeopardy Clause was whether the defendant actually was previously placed in jeopardy, not whether he might have been placed in jeopardy if other procedures had been followed. Therefore, the court held that defendant's prosecution did not violate the Double Jeopardy Clause. The court also rejected defendant's alternative argument, reversing and remanding for further proceedings. View "United States v. Stoltz" on Justia Law

Federal employees who are members of the National Guard are entitled to up to 15 days of annual military leave “without loss in pay, time, or performance or efficiency rating,” 5 U.S.C. 6323(a)(1). Before a 2000 amendment, the Office of Personnel Management interpreted the section as providing 15 calendar days of leave, rather than 15 workdays; federal employees who attended reserve training on non-work days were charged military leave. The Federal Circuit held that even before 2000, federal agencies were not entitled to charge employees military leave on non-workdays. Tierney worked at the DEA, 1974-2001, and was a member of the Air National Guard. He filed a Merit Systems Protection Board claim that the DEA charged him military leave for reserve duty on 44 non-workdays, so that he took annual leave or unpaid leave for military duty. An AJ ordered DEA to compensate Tierney for 17 days. The full Board reversed, finding that the Military Leave Summary and Tierney’s testimony were based solely on his military records and on speculation that DEA improperly charged military leave on intervening non-workdays and that the evidence was insufficient to prove that DEA charged him military leave on non-workdays or that he used annual leave for reserve duties. The Federal Circuit reversed and remanded, concluding that the decision was not supported by substantial evidence. View "Tierney v. Dep't of Justice" on Justia Law

Pirkl served in the Navy, 1947-1949. Effective in 1949, the VA awarded him disability benefits for paranoid schizophrenic reaction, evaluated as 10% disabling. A regional office increased his disability rating to 100%, effective in 1952. In 1953, the office reduced the rating to 70%. Pirkl did not appeal. In 1956, the office reduced Pirkl’s rating to 50%, based on a newly acquired medical examination and changes in Pirkl’s employment status. Pirkl did not appeal. In 1966, the office reduced the rating to 30%. The Board of Appeals affirmed. In 1991, Pirkl was awarded a 100% disability rating, effective 1988. In 2001, Pirkl unsuccessfully sought to revise the 1953, 1956, and 1966 rating decisions based on clear and unmistakable error (CUE). In 2005, Pirkl filed Notice of Disagreement with respect to the 1953 rating. The Board found CUE. The regional office awarded a 100% rating for 1952 to 1957, when the 1956, decision made effective a 50% rating. The Board dismissed Pirkl’s claim for 100% disability for the entire period between 1952 and August 30, 1988. The Veterans Court affirmed. The Federal Circuit vacated and remanded, concluding that the Board did not consider the effect of certain regulations governing a reduction of a total disability rating. View "Pirkl v. Shinseki" on Justia Law

James Mallard and Tonya Mallard (now Tonya Mallard Burkart) were divorced on in 2001. Incorporated into the Final Judgment of Divorce was the Child Custody and Support and Property Settlement Agreement executed by the parties. A significant portion of the financial settlement that Burkart received in the property settlement agreement consisted of forty percent of Mallard's "disposable military retirement pay" for ten years. Following the divorce, Mallard elected to adopt a sixty-percent disability rating as part of his retirement pay. Mallard did not provide any of these disability benefits to Burkart. When Mallard filed a Petition for Modification of Judgment of Divorce in chancery court pursuant to child-support and custody matters, Burkart filed a counterpetition for contempt, asserting that Mallard had structured his retirement in such a way as to defeat her forty-percent interest in the total retirement pay. The chancellor determined that Burkart was entitled to forty percent of the disability benefits, but he declined to find Mallard in contempt. Mallard appealed. Upon review, the Supreme Court found that since federal law preempts state law, state courts are precluded from allocating military disability benefits to a nonmilitary spouse; therefore, the Court reversed and remanded the case for further proceedings. View "Mallard v. Burkart" on Justia Law