Federal Court of Claims

If, as a result of adverse actions, you have a money claim against the military service, you may be able to get relief in the Federal Court of Claims. Here are some examples.

A recent good result obtained by Mr. Kornacki, of counsel to Cave & Freeburg, LLP.

A retired lieutenant colonel petitioned for relief because he alleged he was wrongfully forced to retire because of "constant flagging" and harassment. Mr. Kornacki was able to presuade the government not to seek dismissal but to have the court remand the case to the board for correction of military records. This is a good result because it will allow the officer to make a better record for the CoFC.

Client submitted a voluntary request to separate based on incorrect advice and the AF failed to process her withdrawal request - the Court remanded it to the AFBCMR to answer more questions and denied the gov't motion to dismiss.

Great result - Client received a GOMOR multiple incidents of sexual misconduct/abuse of authority, etc - petitioned the ABCMR - the ABCMR granted relief and removed the GOMOR.

Client was separated from the Army for non-promotion after receiving a referred OER and GOMOR for fraternizing. Filed a claim at the Court of Federal Claims and his case was remanded to the ABCMR. ABCMR just decided to remove the GOMOR and OER - even when the evidence was unclear - and to allow him to be considered for an SSB with a possible return on AD.

Note, every case is different so there is no guarantee that the results in one will get the same result in another case. It all depends on the facts and law.

Military Pay Claims at the U.S. Court of Federal Claims

Federal law allows you to sue the U.S. government for payment of money as a result of the wrongful discharge, improper retirement, denial of promotion, service-related disability, and incorrect military records under some circumstances. Filing and litigating military pay claims at the U.S. Court of Federal Claims involves numerous statutory and regulatory regimes from Title 10 to Service regulations and Department of Defense Instructions. Corrections of military records may involve discharge upgrades, removing referred fitness reports, relief for cause, non-promotion, or almost any other action if there is a nexus with military pay. Both Active Duty and Reservists may file claims. Because some claims require that administrative remedies must be exhausted first, it is very important to carefully navigate the existing legal framework to obtain the desired relief.

The first step at The Law Office of Philip D. Cave is to schedule a free confidential consultation at 703-298-9562.

In Smith v. Sec’y of the Army, 384 F.3d 1288, 1294 (Fed. Cir. 2004), the Court recognized that a service member is entitled only to the salary of the rank to which he or she is appointed and in which he or she serves. Generally, in order to be successful in lawsuits for failure to promote, it must be shown that:

1. there is a clear-cut legal entitlement to promotion, or
2. the decision not to promote led the service member to be discharged.

Failure to promote cases frequently arise from promotion boards considering incorrect military personnel records such as:

• Improperly Filed Derogatory Information
• Referred Fitness Reports
• Unsubstantiated Adverse Findings, or
• Missing personnel records

Courts have recognized that if you are wrongfully discharged the statutory right to pay continues and under some circumstances, you may be entitled to back pay. See generally Holley v. United States, 124 F.3d 1462, 1465 (Fed. Cir. 1997) Usually wrongful discharge cases arise when service members are discharged in violation of statutory requirements, service regulations, or they are denied constitutional due process. This also includes involuntary retirement. Very often, wrongful discharges also involve the correction of military records, such as a discharge upgrade.

In a typical case, a service member may be discharged and receives an other than honorable characterization of service. If the Court finds that he or she was wrongfully discharged, the Court may award back pay and may also direct to upgrade the discharge. Typical examples of wrongful discharge include:

• Failure To Properly Convene A Separation Board
• Unfair or Biased Proceedings
• Due Process Violations During Elimination Proceedings
• Innocent Ingestion
• Improperly Filed Adverse Military Records in Military Human Resource Records

Service members who are determined to be unfit to perform their duties because of a service-connected physical disability may, under some circumstances, file a lawsuit at the U.S. Court of Federal Claims for the disability retirement pay. It is generally accepted that the disability retirement pay statute is money-mandating. It is important to note that disability pay claims are not veteran benefit cases. Disability claims usually apply to service members who are disabled by disease or injury while in the military. Once discharged, the U.S. Department of Veterans Affairs may offer compensation benefits for the same injury.

Previously, the U.S. Court of Federal Claims has offered the following relief:

• Void a wrongful discharge
• Correct military records
• Place a service member in the correct retirement status
• Confer constructive active duty credit
• Remand the case to a board for correction of military records
• Grant monetary relief

Call The Law Office of Philip D. Cave to schedule a free confidential consultation at 703-298-9562.

The Law Office of Philip D. Cave assisted a wrongfully discharged service member in upgrading his other-than-honorable discharge. Based on Mr. Kornacki’s case evaluation, Client filed a complaint at the U.S. Court of Federal Claims instead of filing a petition with a board for correction of military records. Next, Mr. Kornacki negotiated a settlement on behalf of our Client with the Department of Justice. Negotiations were successful, and our client received a new certificate of discharge – DD 214 – showing an honorable characterization of service.