BCMR Cases And Results
Brian D. Schenk of Midwest Military & Veterans Law has worked on a broad spectrum of military personnel issues. Below is a sampling of the types of results his work has achieved or substantially contributed to:
ABCMR Waives ROTC Disenrollment Debt
The Army Board for Correction of Military Records (ABCMR) waived an ROTC disenrollment debt for a member who faced recoupment action but later enlisted and served for several years. Under a little-known ABCMR policy, the board may waive ROTC recoupment if the member, despite disenrollment, enlists in the Army (or another service) and serves the time that would have been required under their ROTC contract.
NDRB Discharge Upgrade
The Navy Discharge Review Board (NDRB) upgraded a member’s narrative reason from “pattern of misconduct” to “secretarial authority” after conceding that the Navy failed to adhere to its alcohol abuse policy that requires screening and intervention – with the goal of returning the member to full duty – upon a first alcohol-related incident.
ABCMR Awards Active-Duty Constructive Service Credit
The Army Board for the Correction of Military Records (ABCMR) granted five years of active-duty constructive service credit for an E-7 unlawfully separated from his active guard reserve (AGR) position with a state Army National Guard unit. The correction to his records implicates back pay, retirement credit and pay, as well as retroactive promotion consideration for E-8 and E-9.
NDRB Discharge Upgrade
The Navy Discharge Review Board (NDRB) upgraded a client’s discharge from an “other than honorable” characterization of service for misconduct related to drug abuse to “general/under honorable conditions” for reason of secretarial authority. After several years of service, the client began suffering from undiagnosed bipolar disorder and extremely stressful familial issues that contributed to the misconduct for which she was separated. Mr. Schenk successfully utilized the guidance in the Kurta Memo to argue that the member’s mental health condition mitigated the misconduct.
ABCMR Grants Retroactive Entitlement For Survivor Benefit Plan (SBP) Benefits To Former Spouse
We secured a favorable decision from the Army Board for Correction of Military Records (ABCMR) in a Survivor Benefits Plan (SBP) matter. The client is the former spouse of a deceased retired service member. Generally, SBP benefits are considered marital property or are otherwise assigned to the member’s spouse as part of divorce proceedings. As typically stated in dissolution papers and per federal regulations, the service member must change his SBP election from “spouse” to “former spouse” within a specified period of time from the finalization of the divorce. Perhaps not surprisingly, they do not always make this election to give their now-divorced spouse an SBP annuity upon their death. In such cases, when the service member dies, the former spouse only then discovers they are not entitled to the SBP because no election was made. The former spouse must then petition the BCMR to correct the error.
After the ABCMR granted relief, Mr. Schenk worked with the Defense Finance and Accounting Service (DFAS) to ensure the client’s back pay was properly disbursed and that the ABCMR’s directive was otherwise complied with.
BCNR Cites Wilkie Memo In Upgrading Navy Client’s Discharge
In August 2021, the Board for Correction of Naval Records (BCNR) upgraded Mr. Schenk’s former sailor client’s other than honorable (OTH) discharge. Despite initial years of quality service, the client had been administratively separated on account of receiving nonjudicial punishment for, among other things, unauthorized absence and drug use – all of which occurred after he had been involved in a traumatic event aboard a vessel. Mr. Schenk worked with the client to fully explain the details of the client’s discharge and to accrue and present compelling evidence of rehabilitation and exemplary post-service conduct. He further utilized the guidance of the Wilkie Memo to successfully persuade the BCNR to upgrade the client’s discharge on clemency grounds.
BCNR Upgrades Marine’s Other-Than-Honorable Discharge
In June 2021, Mr. Schenk’s Marine client received an upgrade to his decades-old, other-than-honorable (OTH) discharge from the Board for Correction of Naval Records (BCNR). In the petition he submitted on his client’s behalf, Mr. Schenk presented mitigation and rehabilitation evidence and assisted his client in acquiring key post-service conduct evidence that he made a point of emphasis for the Board’s consideration. The BCNR members agreed that the Marine’s mitigating circumstances and his post-service record were worthy of relief in the interest of justice.
BCNR Directs Resumption Of Disability Evaluation System Processing For Involuntarily Separated Member
Mr. Schenk appealed the separation of a member who was unlawfully separated while he was being processed in the Disability Evaluation System (DES). In any service branch, a member’s DES case takes precedence over many other causes for separation and may only be terminated in specific circumstances, typically if a member commits misconduct. In this case, the Navy improperly separated the member under a non-misconduct regulation and unlawfully terminated his DES case. Mr. Schenk successfully challenged the Navy’s actions to the BCNR who granted relief and directed that the Physical Evaluation Board (PEB) resume processing.
AFBCMR Grants Nearly Two Years Of Retroactive Medical Continuation (MEDCON) Pay
In certain circumstances, the Air Force may extend or otherwise place a member on active-duty orders to process them through the Disability Evaluation System (DES). Called medical continuation (MEDCON), the member remains on active duty, earning active duty pay, through the pendency of their DES processing. In a case involving a member who was erroneously deprived of MEDCON orders for a very protracted DES case, Mr. Schenk successfully petitioned the AFBCMR who granted relief that resulted in, among other things, two years of active duty MEDCON pay.
Marine Retroactively Retired Through BCNR Records Correction
Mr. Schenk successfully argued to the Board for Correction of Naval Records that a Marine officer was erroneously and unfairly denied a reserve retirement. Although the Marine had amassed nearly 4000 reserve points, he had not been credited for the requisite 20 “good years.” Mr. Schenk gathered evidence and argued to the Board that, decades ago, the Marine should have been credited for two good years, transferred to the retired reserve, and entitled to retired pay at age 60. The BCNR agreed and directed corrections to the Marine’s records that effectively entitled him to retired pay and, perhaps more importantly, gave the officer the pride of being a military retiree.
BCNR Upgrades Other Than Honorable Discharge
In September 2019, the Board for Correction of Naval Records (BCNR) upgraded an other-than-honorable (OTH) discharge for a client who had been separated for the reason of misconduct nearly 26 years earlier. Mr. Schenk argued that the client’s post-service conduct warranted relief from the Board and presented substantial performance and character evidence, ultimately leading to an upgrade to his characterization of service and narrative reason.
BCNR Directs Retroactive Physical Evaluation Board Consideration
The Physical Evaluation Board (PEB) granted Mr. Schenk’s client relief in September 2019 and awarded retroactive consideration to the Board for Correction of Naval Records (BCNR) to determine the client’s eligibility for disability benefits. The client, a reservist, was found medically unqualified for reserve duty and separated without being placed in the Integrated Disability Evaluation System (IDES) to determine the sailor’s entitlement to disability retirement. Mr. Schenk argued that the condition for which the sailor was separated from the reserves had been incurred during a prior active-duty period and the Navy erred in failing to afford the sailor IDES processing.
Army Medical Evaluation Board Findings Reversed
In February 2019, Mr. Schenk successfully challenged the Army Medical Evaluation Board’s (MEB) findings that an officer’s unfitting condition existed prior to service and was not service aggravated. After Mr. Schenk filed a comprehensive rebuttal, the MEB reversed its findings to reflect that the officer’s condition had been permanently service aggravated, thereby paving the way for disability compensation through the Army’s Integrated Disability Evaluation System (IDES).
Army ROTC Disenrollment Avoided
In the Fall of 2018, Mr. Schenk assisted an Army Reserve Officer Training Corps (ROTC) cadet who was facing disenrollment – and possible recoupment of over $150,000 – for failure to meet physical fitness standards. Mr. Schenk advised his client that throughout the process, he worked to place pressure on the cadre. Ultimately, a procedural error was exposed, and the cadet was allowed a remedial fitness test, which he passed. He was commissioned in January 2019 and will be a great officer.
Barring Order Rescinded
In November 2018, Mr. Schenk successfully petitioned the Army to rescind an order barring his client from entering U.S. Army Europe installations.
Client Awarded 80% Combat-Related Special Compensation (CRSC)
In October 2018, Army Human Resources Command approved Mr. Schenk’s client’s claim for Combat-Related Special Compensation (CRSC), awarding 80% of total combat-related disability for various injuries. Mr. Schenk researched, drafted and submitted the CRSC claim on his client’s behalf.
GOMOR Transferred To Restricted File
In August 2018, the Department of the Army Suitability Evaluation Board (DASEB) notified Mr. Schenk’s client that it had directed the transfer of a General Officer Memorandum of Reprimand (GOMOR) to his restricted file, effectively insulating it from the review of any future promotion boards. As many Army members know, a GOMOR can be a barrier to career advancement and often lead to early separation. But they can be transferred to a restricted file upon proper petition to the DASEB. Mr. Schenk worked with his client to submit a compelling petition to the DASEB, which directed that his GOMOR be placed in his restricted file.
Another Security Clearance Protected
In October 2017, Mr. Schenk’s client received a “Statement of Reasons (SOR)” and notice of intent to deny his security clearance due to a few indiscretions before he joined the United States Air Force. In response, Mr. Schenk worked with his client to develop a rebuttal that addressed the specific allegations in the SOR and provided key mitigating evidence and arguments in favor of granting his clearance. In January 2018, the Department of Defense granted the client’s security clearance. The Air Force acted swiftly to place the client back into training so that he can resume his career.
Navy Formal PEB Places Client On TDRL With Combat-Related Designation
In August 2017, Mr. Schenk represented a Naval member at a Formal Physical Evaluation Board (FPEB). At the hearing, the PEB placed the client on the Temporary Disability Retired List (TDRL) with a combat-related designation, effectively overturning previous findings by the Medical Evaluation Board (MEB) and Informal Physical Evaluation Board (IPEB).
The case involved novel and unique circumstances wherein the client was claiming combat-related PTSD despite not physically being in a zone of danger. After researching the issue and crafting persuasive written material, Mr. Schenk successfully argued that the client’s unique circumstances fell within the requirements for combat-related disability under 10 U.S.C. § 1413a.
After the FPEB issued its findings, Mr. Schenk successfully petitioned the Veterans Administration for a rating increase to 70% under the Integrated Disability Evaluation System (IDES) rules for reconsideration.
Survivor Benefit Plan Annuity Retroactively Awarded
After months of effort, the Defense Finance and Accounting Service (DFAS) paid Mr. Schenk’s client a sizable five-figure lump-sum Survivor Benefit Plan (SBP) annuity payment. Due to a variety of extraordinary factors, procuring the payment required months of coordination with the Department of Justice, the Board for Correction of Naval Records (BCNR) and DFAS.
Unbeknownst to the client, his retired Naval officer father, who passed away years ago, had paid into SBP, which is a plan designed to provide survivors with cost-of-living income while they are minors and/or attending college. The client completed college without receiving any SBP annuity and moved on with his career for years until he received notice from a plaintiff in a pending United States Court of Federal Claims (CFC) action that essentially claimed entitlement to the client’s portion of the annuity. Mr. Schenk, who is licensed to practice in the CFC, contacted the Department of Justice (counsel for the United States) and informed them that his client intended to file an administrative claim for his portion of the SBP benefit. This delayed the CFC litigation – and kept his client out of court – while Mr. Schenk coordinated with DFAS to submit a BCNR application that effectively removed a statutory cap on the amount his client could receive. After successfully petitioning the BCNR to remove the cap through a retroactive records correction, Mr. Schenk then petitioned DFAS, which disbursed a sizable lump sum to his client.
Security Clearance Protected
Mr. Schenk’s client received a notice of intent to revoke his security clearance due to allegations contained in an Army Criminal Investigations Command (Army CID) investigation. In response, Mr. Schenk compiled a rebuttal that systematically attacked CID’s findings and emphasized key mitigating evidence in support of his client’s request to keep his clearance. In June 2017, the Department of Defense decided not to revoke the client’s clearance.
Full Relief From The Army Board For The Correction of Military Records (ABCMR) Relieving ROTC Scholarship Recipient Of A Substantial Outstanding Debt
Due to health problems, the cadet could not satisfactorily complete the program’s physical fitness requirements. The Army stopped paying the cadet’s tuition, while the university still allowed her to remain in school. As a result, the university sought substantial tuition reimbursement from the cadet. Based on the arguments made in an application to the ABCMR, the Board found the cadet’s benefits unjustly had been suspended and corrected her records to reflect that she had remained in the ROTC program. The corrections resulted in the Army settling the cadet’s outstanding debt with the university.
Discharge Upgrade By The Naval Discharge Review Board (NDRB) And Reenlistment Code Upgrade By The Board For Correction Of Naval Records (BCNR)
The client was a former Marine who had received a general discharge under honorable conditions. On a paper review, the DRB had already upgraded the Marine from an other-than-honorable to a general discharge for reason of misconduct. Upon reapplication, the NDRB further upgraded the discharge to honorable but failed to remove barriers to the client’s reenlistment. Upon application to the BCNR, the Board finally upgraded the client’s reenlistment code to RE-1 and paved the way for future service.
Successful Grant Of State Medical License For Former Navy Physician
Years ago, the physician was subjected to adverse privileging recommendations that were later rejected by the cognizable authority, which reinstated the physician’s privileges without restriction. Nonetheless, the ordeal left its mark and presented red flags for a state medical licensing board considering the physician’s application to practice medicine. The Board requested several explanations and significant amounts of documentation, much of which the physician did not possess due to the passage of time. Despite these obstacles, Mr. Schenk and his former firm were able to gather the documentation from the Navy through repeated, targeted requests. They were further able to assist the physician in explaining complicated Navy procedures to the licensing board, which left no doubt that the physician was a competent provider who should receive a license without hesitation.
Full Relief From The Air Force Board For Correction Of Military Records (AFBCMR)
The client was an ROTC cadet who was wrongfully disenrolled and faced significant debt recoupment. The AFBCMR directed the removal of the client’s record of disenrollment and ceased all recoupment actions.
NOTE:
Each case is unique, and past results do not provide a guarantee of future outcomes in any given case.