Skilled Legal Representation For Members Of Every Service Branch

Federal 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:

Federal Court Challenge To ABCMR’S Refusal To Reimburse Out-Of-Pocket Medical Costs In Retroactive Disability Retirement Case

In an action filed with the United States Court of Federal Claims, the government waived massive TRICARE medical debt and reimbursed an army officer’s out-of-pocket private insurance premiums, prescription costs and other expenses, resulting in nearly half a million dollars in monetary relief. The officer was due these amounts after the Army Board for Correction of Military Records (ABCMR) granted retroactive disability retirement but failed to reimburse him for the out-of-pocket expenses he had incurred when he and his family should have been on a low-cost TRICARE plan. To secure this relief, Mr. Schenk leveraged the Federal Circuit’s holding in McCord v. United States, 943 F. 3d 1354 (Fed. Cir. 2019), which stands for the proposition that members whose records are changed to establish retroactive disability retirement, they have a claim for damages for the out-of-pocket expenses they incurred as a result of the service’s failure to properly retire them.

Federal Court Challenge To BCNR Denial Of CRSC Benefits For Combat-Related PTSD

In an action in the United States Court of Federal Claims, Mr. Schenk successfully challenged a Board for Correction of Naval Records (BCNR) denial of a client’s claim for Combat-Related Special Compensation (CRSC). The client had suffered post-traumatic stress disorder (PTSD) from witnessing numerous combat events in the course of their duties in Afghanistan. After the Navy and BCNR persisted in misinterpreting the direct-result-of-armed conflict CRSC criteria to require actual engagement with the enemy, Mr. Schenk challenged the BCNR’s decision in federal court. On remand, the BCNR granted relief, which not only made the member entitled to CRSC but also opened the door for the award of attorney fees under the Equal Access to Justice Act (EAJA).

Attorney Fees After Successful Federal Court Challenged To AFBCMR Decision

After prevailing in an action challenging an Air Force Board for the Correction of Military Records (AFBCMR) decision in the United States District Court for the District of Maryland, Mr. Schenk successfully negotiated the payment of attorney fees under the Equal Access to Justice Act (EAJA). The case involves the Air Force’s misdiagnosis of a member’s bipolar disorder as a personality disorder, thereby depriving the member of disability evaluation system (DES) processing and disability retirement benefits. It further involves the AFBCMR’s misapplication of the “snapshot in time standard” to arbitrarily exclude post-separation medical evidence and the board’s failure to engage meritorious evidence that the member never had a personality disorder.

Federal Court Rules In Favor Of Mr. Schenk’s Air Force Officer Client AFBCMR-Review Case

The U.S. District Court for the District of Columbia recently ruled in favor of Mr. Schenk’s retired Air Force officer client in a case seeking judicial review of an Air Force Board for Correction of Military Records (AFBCMR) decision. The court found the AFBCMR’s decision-making to be arbitrary and capricious in contravention of the Administrative Procedure Act (APA) and established precedent. After an extensive briefing on a voluminous record, the court entered judgment against the Air Force and remanded the case to the AFBCMR for consideration that complies with the AFBCMR’s APA decision-making obligations. We are now seeking attorney’s fees under the Equal Access to Justice Act (EAJA).

At its core, the case involves the Air Force’s questionable use of the commander-directed investigation (CDI) process to support equally questionable, adverse command action. We are hopeful the AFBCMR corrects the errors or injustices in the record that we believe are plainly evident.

Federal Court Rules In Favor Of Mr. Schenk’s Army Officer Client In G.I. Bill Benefits Transfer Case

On March 31, 2021, the United States District Court for the District of Columbia (DDC) entered judgment in favor of an Army Reserve officer-client who challenged the Army’s denial of his attempts to transfer a portion of his GI Bill benefits to his children.

In March 2015, Mr. Schenk, In Conjunction With A Stellar Legal Team That Included Attorneys From Prominent Supreme Court Litigation Firm, Jenner And Block, Acted As Co-Counsel On A Petition For A Writ Of Certiorari Filed With The United States Supreme Court In Schwalier V. Carter

The petition raised the question of whether certain provisions of the Defense Officer Personnel Management Act violate the Appointments Clause. Also supporting the petition as amicus curiae was the Military Officers Association of America and the General Officers’ Network, as well as the Air Force Association and former Air Force Secretaries Dr. James G. Roche and Michael W. Wynne.

Partial Summary Judgment In Federal Court Holding A Board For Correction Of Naval Records (BCNR) Decision Arbitrary And Capricious In Violation Of The Administrative Procedure Act (APA) And Remanding The Matter To The Secretary Of The Navy For Further Proceedings

In this case, the BCNR had failed to provide any basis for the Court to conclude that its decision was the product of reasoned decision-making, which is a violation of the APA.

Partial Summary Judgment In Federal Court Holding Unlawful Decision A Decision Of The Army Board For Correction Of Military Records (ABCMR) And Remanding The Case For Proper Consideration

The ABCMR had failed to adequately address the arguments the plaintiff had presented to it. On remand, when forced to address these arguments, the ABCMR granted full relief, entitling the plaintiff’s removal of an adverse Officer Evaluation Report (OER) and Special Selection Boards (SSB), who will determine whether he should be retroactively promoted.

Summary Judgment In Federal Court Setting Aside Unlawful Decision Of The Army Board For Correction Of Military Records (ABCMR) And Remanding The Case For Proper Consideration

On remand, the ABCMR granted favorable relief for an Army chaplain who had been unjustly issued a negative Officer Evaluation Report (OER) and denied promotion to colonel. The ABCMR ordered the redaction of all adverse language from the OER and directed that the chaplain be reconsidered for promotion to colonel based on a corrected record.

Denial Of Defendant United States Of America’s Motion To Dismiss Federal Tort Claims Act (FTCA) Action

Defendant argued that Plaintiff had failed to meet a pre-suit notice requirement in the District of Colombia’s Medical Malpractice Proceedings Act (MMPA). Based on Mr. Schenk’s research and writing, Plaintiff argued that the Court could and should waive the requirements of the MMPA in Plaintiff’s case. The Court agreed and denied the defendant’s motion to dismiss. The denial paved the way for a six-figure settlement.

NOTE:
Each case is unique, and past results do not provide a guarantee of future outcomes in any given case.