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When you decide to pursue your military pay claim at the U.S. Court of Federal Claims, it is important to have an experienced and dedicated counsel on your side. The U.S. Court of Federal Claims has the power to decide and award military pay claims brought by Service members against the U.S. Government for wrongful discharges, promotion non-selection, or denial of military retirement. The Court also reviews Correction Board decisions.
erroneous or wrongful discharge
involuntary military retirement
debt or recoupment
failure to promote (limited circumstances)
special selection board
incorrect retirement rank
other military pay claim actions
In some cases, the statute of limitations starts when a certain action occurs, (for example in a wrongful discharge); in other cases when an agency taken a final action. If you are not sure when your statute of limitation starts then consult with an experienced military law attorney as soon as possible. Almost every week I speak with someone who waited too long to file a military pay claim and now his or her options are limited.
Recent cases show that the U.S. Court of Appeals for the Federal Circuit and U.S. Court of Federal Claims will dismiss lawsuits that are filed too late.
In Patterson v. United States, No. 21-894C, , the Court of Federal Claims dismissed Plaintiff's lawsuit contesting the Army Board for Correction of Military Records decision. The Court observed that Plaintiff was examined by a Physical Evaluation Board and discharged in 2001 and he filed a lawsuit in 2021. The Court also noted that Plaintiff had actual and constructive knowledge at the time of his discharge. Based on this, Plaintiff filed his action outside of the six year statute of limitations.
CASE RESULTS DEPEND UPON A VARIETY OF FACTORS UNIQUE TO EACH MILITARY PAY CLAIM OR WRONGFUL DISCHARGE CASE; CASE RESULTS DO NOT GUARANTEE OR PREDICT A SIMILAR RESULT IN ANY FUTURE CASE UNDERTAKEN BY THE LAWYER.
Service member denied fair consideration during his promotion board. Service member did not obtain relief through administrative means. Action: Conducted legal research, obtained additional evidence, asserted a military pay claim and made filings at the U.S. Court of Federal Claims on behalf of the Service member. Result: Matter remanded to the Board for Correction of Military Records. Made additional filings in response to the advisory opinions. The agency granted partial relief and the Service member was considered by a Special Selection Board and recommended for promotion.
Service member was separated from active duty with less than two years to retirement. Reviewed records and identified potential legal arguments. Action: Petitioned Discharge Review Board and Correction Board but both boards denied relief. Filed a lawsuit at the U.S. Court of Federal Claims based on numerous violations concerning the separation process. The Court found that the Service member was improperly separated.
Service member separated under other than honorable conditions (OTH), re-entry code 4, and narrative reason for separation misconduct (drug abuse). Action: Reviewed the evidence and conducted legal research. Filed a lawsuit at the U.S. Court of Federal Claims alleging, in part, wrongful discharge and abuse of discretion. Result: New DD Form 214 issued with characterization of service as honorable, re-entry code 1 and expiration active duty obligation.
Following his Court-Martial, service member was wrongfully discharged even though he should have been retired. Action: Initiated military pay claim litigation for wrongful discharge and military retirement at the U.S. Court of Federal Claims that was subsequently remanded to the Board for Correction of Military Records. Filed a comprehensive and well documented petition at the Board for Correction of Military Records. Result: The Board agreed that the service member should have been retired. Service member received retirement and back pay.
An officer was separated from active duty based on not being selected for promotion. The officer also was substantiated for misconduct, and received a referred evaluation and derogatory information. After filing a lawsuit with the U.S. Court of Federal Claims, the action was remanded to the Board for Correction of Military Records. The officer filed his petition there documenting all errors and injustices. The Board for Correction of Military Records recommended to consider the officer for promotion and removed all derogatory information from his permanent records.
Monroe v. United States, No. 18-1059C (November 13, 2020)
ATTORNEY'S FEES: In this case, Plaintiff's substantially prevailed in his lawsuit against the U.S. Government concerning his involuntary separation and medical unfitness. The Court awarded $50,881.27 in attorney's fees and expenses pursuant to the Equal Access to Justice Act.
Lancaster v. United States, 22-267C (July 23, 2023)
ATTORNEY'S FEES: In this case, the Court found that Plaintiff was not entitled to attorney's fees because Plaintiff was not a prevailing party - even though the Army took voluntary corrective actions. The Court said 'Because a voluntary change of conduct does not necessarily change the legal relationship of the parties, it cannot make the plaintiff a “prevailing party.”
Burke v. United States, No. 23-961 (July 18, 2023)
COURT FEE: Failure to pay the Court fee of $402 will result in a dismissal of the complaint. In this case, the Court ordered Plaintiff to pay the fee and the Plaintiff failed to do so. The Court also pointed out that if she paid the fee, it would still not have jurisdiction over her case.
Labonte Jr. v. United States, No. 18-1784C (October 30, 2020)
COURT-MARTIAL CONVICTION: In this case, Plaintiff was court-martialed and received a bad conduct discharge. Subsequently, his characterization of discharge was upgraded to a general under honorable conditions. In his lawsuit, Plaintiff argued that he was entitled to disability retirement because of his post-traumatic stress disorder (PTSD) and traumatic brain injury (TBI). The Army Board for Correction of Military Records denied relief. The Court noted that it could not set aside Plaintiff’s conviction under 10 U.S.C. § 1552. It also noted that the Army Board for Correction of Military Records had no such power. Based on this, the Court decided to dismiss his lawsuit. The Court also noted that more than 6 years have passed since Plaintiff’s discharge.
Gregory v. United States, No. 18-1322C (October 31, 2020)
DISABILITY RATING: In this case, Plaintiff argued that the percentage of his disability rating was incorrectly calculated. The Court found that the Air Force Board for Correction of Military Records (AFBCMR) failed to consider whether Plaintiff’s condition worsened between the time of his entrance into the Disability Evaluation System and his discharge. The Court noted that ‘Briefly rubber stamping previous agency decisions, and the earlier, 2018 AFBCMR decision by the 2019 AFBCMR was not sufficient.’ Because the Air Force Board for Correction of Military Records did not consider all the evidence, the Government’s motion for judgment was denied and the Court remanded the case to the Board again. The Court noted that it was ‘[u]nfortunate as yet another remand is to further elongate the proceedings for plaintiff. The Court ordered the AFBCMR is ordered this time to consider all of the medical evidence.
Draper v. United States, No. 20-1444 (November 30, 2022)
GRADE DETERMINATION: In this case, the Court found that the Air Force erred in reducing plaintiff's retirement rank from Colonel to Lieutenant Colonel. First, the Air Force justified its reduction by making improper references to the record, and then the Air Force Board for Correction of Military Records failed to take corrective action. Based on this, the Court remanded this grade determination action to the Air Force.
Olive v. United States, No. 22-424 (May 17, 2023)
INSUFFICIENT EVIDENCE: In this case, the Court found that the Army rationally denied relief for Combat Related Special Pay compensation. Plaintiff introduced uncorroborated statements made years after the alleged events, service awards that added little information to support Plaintiff's claims, and other documents provided little independent evidence because they were issued years after the alleged events and merely recounted the events without validating them.
Pipes v. United States, No. 15-1163C (January 7, 2022)
LINE OF DUTY: In Pipes v. United States, the U.S. Court of Federal Claims found that the Air Force Board for Correction of Military Records properly denied medical retirement to Mr. Pipes. The Board found that while Mr. Pipes was in U.S. Air Force Reserve and was injured in the Air Force’s Self-Paced Fitness Improvement Program that he completed between Unit Training Assemblies (UTAa), he failed to show evidence that he was authorized for inactive-duty training (IDT). Based on this, he was not injured in the line of duty (LOD), and under the applicable law, he would not receive disability-retirement pay and benefits. Mr. Pipes argued that he suffered a stroke while he was exercising and therefore he should be medically retired. The Court opined that the Air Force Board for Correction of Military Records decision was reasonable, and Mr. Pipes was unable to meet his burden of proof. The Court recognized that consistent with 10 U.S.C. § 1204(2)(B)(i), to qualify for disability retirement, a military member’s disability must, in relevant part, be “a result of an injury, illness, or disease incurred or aggravated in the line of duty . . . while performing active duty or inactive-duty training.” This was not the case here.
Nyan v. United States, No. 20-343C (April 5, 2021)
MEDICAL RETIREMENT: In this case, the Court directed the Navy to retire Mr. Nyan for two reasons. The first one being that the Navy's medical examination of Mr. Nyan was inconsistent with its own instructions and the second was that it was also not supported by the evidence. The Court also directed that Mr. Nyan receives back pay.
Marshall v. United States, No. 18-549 (March 1, 2023)
OUT OF POCKET MEDICAL PAY: In this case, the Court of Federal Claims explained, in part, that the Board for Correction of Naval Records is mandated to correct military records, but it does not have authority to award specific monetary awards for reimbursement of medical costs. In this case, the Board for Correction of Naval Records corrected plaintiff's records and recommended to coordinate with TRICARE or DFAS.
Mazarji v. United States, No. 22-750 (February 24, 2023)
PRESUMPTION OF AGGRAVATION: In this case, the Court of Federal Claims explained that this presumption meant that a servicemember will be presumed to have aggravated the complained-of condition in the line of duty unless the disease or injury was noted at the time of entry into service. The presumption of aggravation attaches once the servicemember shows first that the condition increased in severity. The presumption does not attach when there is 'clear and unmistakable evidence'; in this case, the Court determined that the presumption did not apply because plaintiff was separated in 2014, but only complained of the injury in 2016.
Rempfer v. United States, No. 23-56C (July 7, 2023)
PROMOTION ENTITLEMENT: In this case, Plaintiff (retired Lieutenant Colonel) argued that he was entitled to promotion to the rank of Colonel and retired pay because the Air Force advanced him to the rank of Colonel after he retired. The Court explained that in order to be entitled to the Colonel retired pay, a Service member had to be properly nominated and approved; Plaintiff's advancement did not apply retroactively. Based on this, he was not entitled to the pay and increased retirement.
Thomassee v. United States, No. 20-1481C (February 15, 2022)
REMAND: In this case, the United States moved to remand the case to the Air Force Board for Correction of Military Records. The Plaintiff objected arguing that it would delay the cause, there was bad faith, and the likelihood of the Board granting relief was low. The Plaintiff filed a lawsuit arguing that the Air Force Board for Correction of Military Records wrongfully refused to increase his disability rating. The Court noted that there was no evidence of bad faith, the record was not clear, and the United States appeared to be willing to reconsider its initial decision - and the Court remanded the case.
Kuntz v. United States, No. 18-1541C (February 11, 2019)
RESERVE COMPONENT: In this case, Plaintiff – a Reserve Soldier – engaged in misconduct while not on active duty. Based on the misconduct, he was charged with numerous offenses under the Uniform Code of Military Justice, and court-martialed. He pled guilty and was discharged from Army Reserves. The Army Court of Criminal Appeals upheld his conviction. The Court of Appeals for the Armed Forces rejected his argument that at the time of misconduct he was not on active duty or under training orders. Subsequently, he filed a lawsuit at the U.S. Court of Federal Claims seeking to restore his rank and grade, back pay, allowances and to correct his military records. The Court dismissed his lawsuit because as a Reserve Soldier he was only entitled to back pay for training or duties because he was not on active duty or under orders for training. The Court reiterated that ‘a reservist can only recover pay under the Military Pay Act for time on active duty or for drills and training actually performed, regardless of whether he was wrongfully removed from duty.’ The Court had no choice but to dismiss his complaint.
Crumley v. United States, No. 21-976C (September 28, 2021)
RES JUDICATA: In Crumley v. United States, Plaintiff contested his administrative discharge from the Air Force. He was separated in 2011 due to a reduction in force. After the Air Force Board for Correction of Military Records denied relief, he filed a lawsuit at the Court of Federal Claims contesting his discharge in 2014. His lawsuit was dismissed because he did not seek relief through the reduction in force board as required under the law. In 2016, he filed a second lawsuit challenging personnel records that led to his discharge. The Court granted the government's motion for judgment. In 2021, he filed another lawsuit with the Court arguing that the reduction in force board considered incorrect records and that the Air Force Board for Correction of Military Records erred. Because in both cases, Mr. Crumley alleged facts that related to the same events, the Court granted the Government's motion to dismiss.
Johnson v. United States, No. 17-1005 (November 12, 2021)
RETIREMENT: In Barry C. Johnson v. United States, (decided November 12, 2021) Mr. Johnson argued that if a soldier reached 20 years of service prior to separation, then under Army Regulation 635-200, paragraph 2-6(b) the soldier must be offered the opportunity to submit a request for retirement as an alternative to administrative separation. ('A Soldier who has completed 20 or more years of active service creditable toward retirement and for whom separation is recommended to HQDA will be given the opportunity of applying for retirement.') In this case, Mr. Johnson completed 19 years and 8 months of service before he received 2 Article 15 punishments and was administratively separated. Mr. Johnson argued that he was denied this opportunity and separated instead of being retired. The Army Board for Correction of Military Records denied relief finding that at the time he was 4 months short of 20 years of service - so paragraph 2-6(b) did not apply. The Court of Federal Claims agreed with the Board. The Court explained that the regulation stated that the service-time requirement applied before separation.
Wild v. United States, No. 21-2225 (September 21, 2022)
SUBSTANTIAL EVIDENCE: In this case, Plaintiff argued in part that the administrative record did not show that his claims were fraudulent, and this is why the Board for Correction of Naval Records' decision was arbitrary and capricious. In this case, Plaintiff was indicted for conspiracy to commit wire fraud, subsequently investigated by Defence Criminal Investigative Service, and allowed to retire but reduced in rank for retirement purposes. The Court of Federal Claims disagreed. First the Court applied the presumption of regularity to the Board's decision. Next, the Court observed that the Board noted that it considered the evidence. The Court noted that Plaintiff failed to show that the Board erred. The Court concluded that the Board reasonably relied on the evidence and without more it would not disturb its decision. Based on this, the Court, granted the Government's motion to dismiss.
Manago v. United States, No. 22-629 C, (February 21, 2023)
SUPPLEMENT ADMINISTRATIVE RECORD: In this case, plaintiff requested to supplement the administrative record that were available to him when his petition at the Board for Correction of Military Records was pending. The Court denied the request. citing Barnick v. United States, 591 F.3d 1372, 1382 (Fed. Cir. 2010) (‘where evidence could have been submitted to a correction board and was not, the evidence is properly excluded by the Court of Federal Claims.’)
Doyon v. United States, No. 19-1964C (January 13, 2021)
STATUTE OF LIMITATIONS: In this case, Plaintiff argued that he was entitled to medical retirement because he was unfit for duty and he challenged the Board for Correction of Naval Records’ decision denying his application. Plaintiff was discharged in 1968. When he applied for VA benefits, VA assigned him a 70 percent disability rating in 2015. Plaintiff filed his lawsuit in 2019. The Court found that the Board for Correction of Naval Records was not arbitrary and capricious.
Harold W. Van Allen v. United States, No. 05-166C (February 7, 2006)
STATUTE OF LIMITATIONS: In this case the Court explained that military pay claims must be filed within 6 years from their accrual. When a claim accrues is a question of law that your experienced military counsel can advise you on. Plaintiff was apparently discharged in 1978. The Board for Correction of Naval Records denied relief in 1986, and then in 2003. Subsequently, Plaintiff filed a lawsuit seeking relief at the Court of Federal Claims.
Patterson v. United States, No. 21-894C (June 11, 2021)
STATUTE OF LIMITATIONS: In Patterson v. United States, No. 21-894C, the Court dismissed Plaintiff's lawsuit contesting the Army Board for Correction of Military Records decision. The Court observed that Plaintiff was examined by a Physical Evaluation Board and discharged in 2001 and he filed a lawsuit in 2021. The Court also noted that Plaintiff had actual and constructive knowledge at the time of his discharge. Based on this, Plaintiff filed his action outside of the six-year statute of limitations.
Sommers v. United States, No. 18-cv-00598 (January 25, 2021)
STATUTE OF LIMITATIONS: In this case, Plaintiff retired from the Army but filed a lawsuit alleging that he was forced out. He failed to timely appeal the Court's judgment and the Court denied his motion for leave to file notice of appeal out of time.
Schussler v. United States, No. 14-690C (December 22, 2020)
STATUTE OF LIMITATIONS: In this case, Plaintiff's spouse missed the statutory deadline for annuity payments under the Reserve Component Survivor Benefit Plan, the Army Board for Correction of Military Records denied relief, and the Court could not grant any relief under the law.
Wheeler v. United States, No. 22-133 (September 14, 2023)
SURVIVOR BENEFIT PLAN: In this case, the Government moved to dismiss the lawsuit arguing that Plaintiff did not file her complaint for her spouse's survivor benefits within 6 years. The Court denied the motion and stated that the benefits accrued at the time when she requested them - not when her spouse passed away.
Buholtz v. United States, No. 16-408C, (August 4, 2023)
VOLUNTARY RETIREMENT: In this case, Plaintiff was arrested and proposed for elimination from active duty. Plaintiff submitted a request to voluntarily retire, and to also medically retire. Based on the arrest and misconduct, the military retired Plaintiff and reduced his rank. The Court explained that calculated choices to avoid less pleasant decisions are not involuntary - and denied relief.
Stahl v. United States, No. 18-496 (October 10, 2023)
WITHDRAWAL REQUEST: In this case, Plaintiff repeatedly requested to withdraw her separation request, but the Air Force failed to act on it and did not list any reasons for its denial. The Air Force Board for Correction of Military Records did not explain its decision. Subsequently, the Air Force rehired Plaintiff for the same position as a civilian.
Lowry v. United States, No. 20-343C (April 8, 2021)
WRONGFUL DISCHARGE: In this case, the Court remanded Mr. Lowry's lawsuit to the Board for Correction of Naval Records to correct his records to show reinstatement and retirement. The Court found that the Navy failed to provide adequate notice as to the reasons for his separation. The Navy also improperly characterized his characterization of service.
Wojciech Kornacki is an outstanding and strong advocate for his clients. To the counter party, he is super tough and strong. To his clients, he is very patient and very pleasant to work with.
Pentagon Law Office specializes in correcting military records and military pay claims at the U.S. Court of Federal Claims and Boards for Correction of Military and Naval Records, and other DoD entities offering legal remedies. This includes military retirement, wrongful discharge, promotions, discharge upgrades, separations, DFAS debt, derogatory information, security clearance matters, grade determinations, evaluations, titling, debarments, expungement, clemency, Family Advocacy matters, and related matters.
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