Petition for Writ of Certiorari — Alan B. Adams, Petitioner v. United States
Supreme Court briefNov 20, 2017
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I
No.
In Tbe
'upreme Court at the 1initeb 'tate
MAJOR ALAN ADAMS, USAF, RETIRED,
Petitioner,
V.
UNITED STATES OF AMERICA,
Respondent.
On Petition For Writ Of Certiorari
To The United States Court Of Appeals
For The Federal Circuit.
PETITION FOR WRIT OF CERTIORARI
.4
MAJOR ALAN ADAMs, USAF, RETIRED
101 Taylor Avenue N, Apt. 415
Seattle, WA 98109
(509) 294-0875
alan.adams135@gmail.com
Petitioner
QUESTIONS PRESENTED
If a worker becomes disabled by their work while
working, and is unable to work, laws protect workers
from being wrongfully discharged by companies. Similarly, in the military arena, laws such as Title 10 and
Directives of the Executive Branch, such as Air Force
Directive 36-3212, exist to protect military personnel.
Further, Boards such as the Air Force Board of Corrections of Military Records (AFBCMR) exist to reverse
errors and injustices. When the Executive Branch and
US Courts are not correctly applying the law, action by
the Court is needed to protect our nation's veterans and
ensure the integrity of the military disability system.
The questions presented are:
The first question for the Court's consideration involves the AFBCMR. Congress created the boards
for the correction of military records (10 U.S.C.
§ 1552) to serve as fair and impartial adjudicators
of administrative law matters concerning military
personnel and veterans. They are the highest level
of administrative law review within the military
departments. The specific question presented is
whether the AFBCMR breached its legal duty to
provide full and fitting relief to a disabled active
duty service member, and what constitutes full
and fitting relief for a retroactively medically retired service member.
The second question concerns the interpretation of
10 U.S.C. § 1413a, Combat-Related Special Compensation (CRSC), by the Department of Defense
11
QUESTIONS PRESENTED
Continued
-
and the Air Force, which treat "disability" as the
underlying disease, condition, or injury. Congress
defined "disability" as the impairment resulting
from the underlying disease, condition, or injury.
The interpretations by the Department of Defense
and the Air Force exclude categories of claimants,
such as me, that Congress expressly included, thus
rendering the statutory scheme incoherent. The
specific question presented is whether the AFBCMR and the Department of Defense applied an
unlawful standard to my CRSC claims.
111
PARTIES TO THE PROCEEDING
All parties are listed in the caption.
RULE 29.6 STATEMENT
None of the petitioners is a nongovernmental corporation. None of the petitioners has a parent corporation or shares held by a publicly traded company.
iv
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ................................i
.
PARTIES TO THE PROCEEDING ...................... iii
RULE 29.6 STATEMENT....................................iii
TABLE OF CONTENTS ......................................iv
TABLE OF AUTHORITIES.................................vi
OPINIONS BELOW.............................................1
JURISDICTION ...................................................
1
STATUTORY PROVISION INVOLVED..............1
STATEMENT OF THE CASE..............................3
REASONS FOR GRANTING THE WRIT............28
This Court should grant certiorari on the
question of whether the AFBCMR provided full and fitting relief because of the
crucial role the Board plays in the administration of military justice .......................28
The Court should grant certiorari to clarify the proper standard to be applied to
service members and veterans who incur
disabling medical conditions while engaged in hazardous service, and who thus
qualify for monetary benefits under 10
U.S.C. §1413a.............................................35
CONCLUSION.....................................................44
V
TABLE OF CONTENTS
Continued
-
Page
APPENDIX
Judgment, United States Court of Appeals for
the Federal Circuit, August 21, 2017 ..............App. 1
Opinion and Order Denying Adams's Judgment
on the Administrative Record, United States
Court of Federal Claims, May 9, 2016.............App. 3
V1
TABLE OF AUTHORITIES
-
Continued
Page
CASES
Allen v. Brown, 7 Vet. App. 439 (1995) .......................36
Connecticut Nat. Bank v. Germain, 503 U.S. 249
(1992).......................................................................41
Davis v. Principi, 276 F.3d 1341 (Fed. Cir. 2002).......36
Dilley v. Alexander, 627 F.2d 407 (D.C. Cir.
1980) ....................................................................28,32
Duhon v. United States, 198 Ct. Cl. 564 (1972) .........28
Froio v. Shinseki, 2014 WL 594096, 2014 ..................34
Hunt v. Derwinski, 1 Vet. App. 292 (1991) .................36
Kungys v. United States, 485 U.S. 759 (1998)............40
Oleson v. United States, 172 Ct. Cl. 9 (1965) .............31
Oneale v. Thornton, 6 Cranch 53 (1810).....................41
Roth v. United States, 378 F.3d 1371 (Fed. Cir.
2004) ..................................................................28,32
Sosa v. Alvarez -Macham, 542 U.S. 692 (2004)...........40
United States v. Goldenberg, 168 U.S. 95 (1897)........41
United States v. Ron Pair Enterprises, Inc., 489
U.S. 235 (1989) ........................................................41
STATUTES
10 U.S.C. Chapter 55 ...................................................16
10 U.S.C. § 1214 ..............................................3, 4, 9, 45
10 U.S.C. § 1413a................................................passim
vii
TABLE OF AUTHORITIES
-
Continued
Page
10 U.S.C. § 1413a(a) ................................................ 2, 35
10 U.S.C. § 1413a(e) ................................................ 2, 35
10 U.S.C. § 1413a(e)(1)(B)...........................................38
10 U.S.C. § 1413a(e)(2) .......................................... 40, 41
10 U.S.C. § 1413a(e)(2)(A)-(D) ....................................40
10 U.S.C. § 1413a(e)(2)(B)...........................................39
10 U.S.C. § 1552 ................................................1, 16, 45
10 U.S.C. § 1552(c)(1)......................................29, 30,32
10 U.S.C. § 1552(h)......................................................31
10 U.S.C. § 1552(h)(2).................................................31
28 U.S.C. § 1254(1)........................................................1
38 U.S.C. § 1110 ..........................................................37
38 U.S.C. § 1131 ................................................2 3 37,38
38 U.S.C. § 1153 ..........................................................38
42 U.S.C. § 423(d)(1) ...................................................36
Public Law 110-181 National Defense Authorization Act for Fiscal Year 2008, Wounded WarriorAct.....................................................................17
§ 1602-1614 .............................................................17
§ 1631.......................................................................17
RULES AND REGULATIONS
32 C.F.R. § 865.7 .........................................................31
38 C.F.R. § 4.1.............................................................36
viii
TABLE OF AUTHORITIES
-
Continued
Page
OTHER AUTHORITIES
Air Force Instruction 36-3212..........................9, 18, 37
DoD Directive Type Memorandum (DTM) (April
27, 2004) ..........................................................passim
1
Major Alan Adams petitions for a writ of certiorari
to review the judgment of the United States Court of
Appeals for the Federal Circuit.
OPINIONS BELOW
The United States Court of Appeals for the Federal Circuit affirmed the decision of the United States
Court of Federal Claims without an opinion and is reprinted at Pet. App. 1. The opinion of the United States
Court of Federal Claims is published at 126 Fed. Cl.
645 (2016) and is reprinted at App. 3. The decisions of
the Air Force Board for Correction of Military Records
are not published.
JURISDICTION
The United States Court of Appeals for the Federal Circuit entered its decision on August 21, 2017.
This Court's jurisdiction rests on 28 U.S.C. § 1254(1).
STATUTORY PROVISIONS INVOLVED
10 U.S.C. § 1552 (Correction of military records)
(a)(1) The Secretary of a military department may correct any military record of the
Secretary's department when the Secretary
considers it necessary to correct an error or
remove an injustice.
10 U.S.C. § 1413a (Combat-Related Special Compensation)
Section 1413a(a) directs the Secretary concerned to "pay to each eligible combat-related
a
disabled uniformed services retiree
monthly amount for the combat-related disability of the retiree determined under subsection (b)."
.
.
.
Section 1413a(e) defines "combat-related disability" by reference to the law of the VA:
In this section, the term "combat-related disability" means a disability that is compensable under the laws administered by the
Secretary of Veterans Affairs and that
-
is attributable to an injury for which the
member was awarded the Purple Heart; or
was incurred (as determined under criteria prescribed by the Secretary of Defense)
-
as a direct result of armed conflict;
while engaged in hazardous service;
in the performance of duty under conditions simulating war; or
through an instrumentality of war.
38 U.S.C. § 1131 (VA Compensation)
For disability resulting from personal injury
suffered or disease contracted in line of duty,
or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in
3
the active military, naval, or air service, during other than a period of war, the United
States will pay to any veteran thus disabled
and who was discharged or released under
conditions other than dishonorable from the
period of service in which said injury or disease was incurred, or preexisting injury or
disease was aggravated, compensation as provided in this subchapter.
10 U.S.C. § 1214. Right to full and fair hearing
No member of the armed forces may be retired
or separated for physical disability without a
full and fair hearing if he demands it.
STATEMENT OF THE CASE
I am a retired U.S. Air Force officer. From the day
of my commission from the United States Air Force
Academy in 1995 until the day I was administratively
separated in July 2006, my record of performance was
consistently rated in the top 1% of my peers.
I received numerous awards and commendations
for distinguished service, including the Air Medal
(with four oak leaf clusters) for meritorious achievement in aerial flight, Officer of Year awards, the Ten
Outstanding Young Americans Award (2002), and the
Outstanding Young Person of the World Award (2003).
While on active duty I sustained several injuries.
These injuries were later aggravated by flying KC-135
aircraft in eight combat deployments, new injuries
4
resulted, and I was rendered unfit for duty. To this day,
I do not have retiree healthcare, nor the entitlements
provided to other medically retired veterans.
It is undisputed that Major Adams was not fit for
duty at the time of discharge. When any service member sustains an injury while on active duty that renders him or her unfit for duty, the service member is
afforded a Physical Evaluation Board (PEB). A PEB
a fact-finding body "investigates the nature, origin,
degree of impairment, and probable permanence of the
physical or mental defect or condition of any member
whose case it evaluates. The disability system provides
for two PEBs: an Informal PEB and a Formal PEB
(FPEB). The FPEB provides the full and fair hearing
required by 10 U.S.C. § 1214. for members recommended for a disability discharge or retirement." This
did not happen for me.
-
-
I put together the matrix below showing benefits
to which military members retired for disability are
entitled.
Customary Medical Retirement Benefits
Retirement
Statute or Directive
Benefit
Retirement Pay
10 Usc 1201 and 642.
Entitlement to retired pay.
Identification Retirees are entitled to an ID card
Card
as well as Direct Care, Comissary,
MWR, and Exchange Privileges.
DoDM 1000 13-V2
Medical
Title 32 National Defense
Insurance/
Chapter VI Part 728 Subpart B
Tricare
Members of the Uniformed
Services on Active Duty
Dental Care
Title 32 National Defense
Chapter VI Part 728 Subpart B
Members of the Uniformed
Services on Active Duty
Dental
32 CFR Ch. 1(7-1-01 Edition)
Insurance
199.13 TRICARE Dental Program.
10 § 1076c. Dental insurance
plan. Provides dental
insurance to certain retirees.
Entitlement to Joint Federal Travel Regulations,
Payment of
Volume 1 (JFTR, Vol 1). 36-3212
Last Move
A2.9 Travel and Transportation
Determinations
AFT 32-3612 3.26-27
for Tax Benefits
DD Form 363AF,
AF136-3203 6.2. The
Certificate of
commander ensures the
Retirement I member receives a certificate
-
-
AFT 36-3212 4.13 Commanders
will conduct a ceremony before
members retire for disability. Air
Force Pamphlet 34-1202 14.3.1.
Commanders ensure members
leave with a tangible expression
of appreciation for
their contributions to the
Air Force and its mission, and
with the assurance they will
continue to be a part of the Air
Force family in retirement.
Retirement Retired Airmen receive the retired
lapel button at retirement. http:/!
Lapel Pin
www.retirees.afmil/Library/FactSheets/Display/Article/440079/
retiree-uniform-wear!
DD Form 2542 is presented.
Presidential
Recognition on Certificate of Appreciation for
Retirement Service in the Armed Forces of the
United States. AFT 36-3203 6.5.
from Military
Service
AFT 36-3203 6.1.2 Commanders
Customary
must evaluate and
Achievement
recognize
the contributions
Medal for a
of their retiring members
Major
Referral for 10 U.S. Code § 1142 requirement
Pre-separation counseling
Pre-Separation
Counseling
Retirement
Ceremony
-
AFI 32-3612,3.38. Gives members
Formal
Hearing for
recommended for retirement the
opportunity to appear in person
Unfit Finding
before the FPEB, to be represented
by counsel and to present
evidence_and _call _witnesses
AFT 32-3612, 3.45. Members have
Appointed
Legal Counsel legal representation at the formal
to Review PEB hearing. The representative is a
PEB-appointed military counsel.
Findings
AFT 32-3612, A2.1 To ensure
Counseling For
all members undergoing
Evaluee
disability evaluation fully
understand the process.
extensive_guidance _directed
AFT 32-3612,2.3, 4.1. The PEBLO
Physical
coordinates processing actions.
Evaluation
Board Liaison Ensures disability cases referred
Officer (PEBLO) to the PEB are complete, accurate,
and fully documented. Counsels
evaluees concerning their rights
in_the_disability _process.
AFT 32-3612, A2.10. Member
Legal Rights
has the legal right to a full
and fair hearing before being
retired_for _physical _disability.
Tax Counseling
AFT 32-3612, A2.15. Tax
Counseling. After advising
member of the estimate of gross
retired pay, the PEBLO counsels
members on how much of that pay
may be subject to income tax and
how much may be exempt.
Retirement
Counseling
Presentation of
U.S. Flag Upon
Retirement
Unit Shadow
Box
Concurrent
Receipt
-
AFI 32-3612, A2.20
10 U.S. Code § 8681
Unit Custom/tradition
to provide a framed
squadron lithograph and
medals_in_a_shadow_box
NDA ACT for Fiscal 20008
SEC. 642. Inclusion of veterans
with service-connected
disabilities rated as total by
reason of unemployability under
termination of phase-in
of concurrent receipt of
retired pay and veterans'
disability compensation
Eligible Servicemembers
may transfer all 36 months
or the portion of unused
Post-9/11 GI Bill benefits
Transfer of
Unused Post
9/11 GI Bill
Benefits to
Dependents
Contributions When corrections to records are
from Income to
made retroactively Air Force
Future Social Finance staff said that individuals
are commonly placed back
Security
into active duty for a period
Earnings
of time, which results in income,
additional Social Security
earnings _and _leave _accrual.
While extensive PEB disability procedures and
protections are available through AFT 36-3212 to provide the full and fair hearing required by 10 U.S.C.
1214 for individuals while they are on active duty, no
such protections are extended to individuals who have
been improperly discharged. One can see in references
above that Congress intended individuals to have assistance, guidance and legal support as they face discharge by disability. The Air Force circumvented the
MEB/PEB process by involuntarily separating me and
denied me the assistance and protections that the law
mandates.
Without assistance of the MEB process, a Physical
Evaluation Board Liaison Officer, and legal counsel
afforded to people facing discharge from the Air Force,
I did not receive benefits that are intended for individuals who are retired due to disability. The chart below
shows the status of my benefits.
10
Customary Medical Retirement Benefits
Status of Benefit
Retirement
Benefit
Estimated
Unpaid
Amount
Sought
DFAS Offered:
$33,513.02. Check
of back pay was
$78,594.00
Retirement Pay returned to DFAS
because it required
full settlement of
all claims.
Not provided until
Identification
4+ years after
Card
discharge Nov 2010
Not eligible for
Tricare until I had
Medical
an ID card. Claims
Insurance/
to Tricare have been
Tricare
denied as recently as
2016 stating that I
am not eligible for
Tricare. DFAS and
$73,852.67
DEERS tell me that
I am eligible for
Tricare but claims
are denied and local
military treatment
facilities report
being unable to
provide care.
-
11
Dental care would
have been provided
while processed for
Dental Care
disability in the
Physical Evaluation
Board
Not eligible for
Dental Insurance
until getting ID card
and pay premium.
Dental
Not allowed to be
" grandfathered" into
Insurance
full coverage due
to contract
limitations with
the Government.
DFAS-IN denies
claim. They report
Entitlement to that they have no
Payment of
record of $1,031.63
check that was
Last Move
previously sent but
not cashed.
No assistance
Determinations
provided
for Tax Benefits
Not received
DD Form 363AF,
Certificate of
Retirement
Retirement
Ceremony
Retirement
Lapel Pin
Not received
Not received
4)199.00
199 00
$
$1,031.63
12
Presidential
Recognition on
Retirement
from Military
None received
Service
Customary
Achievement
Medal for a
None received
Major
Counseling did
Referral for
not apply to retirePre-Separation
ment for medical
Counseling
disability
None received
Formal Hearing
for Unfit
Finding
Appointment of
Legal Counsel
to Review PEB
None received
$780.00
Findings
Counseling For
Evaluee
Physical Evaluation Board
Liaison Officer
None received
None received
(PEBLO)
Legal Rights
and Availability
of Counsel
Throughout
Disability Review
None received
$104,697.55
Process
Tax Counseling
Retirement
Counseling
None received
None received
13
Presentation of
U.S. Flag Upon
None received
Retirement
Unit Shadow
Box
Concurrent
Receipt
Transfer of
Unused Post
9/11 GI Bill
Benefits to
Dependents
Income and
Contributions
from Income
to Future
Social Security
None received
No determination
made
Not given an
opportunity to
transfer unused
benefits
Common record
correction,
not received
Earnings
Total Estimate
$263,154.85
Instead of making me whole and reaching out to
resolve its mistake and resulting consequences, the Air
Force further complicated my situation by denying
claims previously paid, referring me to Social Security
to recover my Tricare insurance, and charging me for
legal fees. Previously, the Air Force reimbursed $5,598
for healthcare premiums (Pet. App. 40) and $1,031.63
for moving expenses. Now DFAS says it is unable to
find any record of a moving expense check being issued
and has not reissued the check for healthcare premium
reimbursement. By discharging me without the disability retirement to which I was entitled, the Air Force
deprived me of the monthly disability income that I
14
would have received. Without income, I was concerned
about my future. I sold my home, moved into apartment, and obtained public assistance (SSDI) from the
Social Security Administration, which resulted in my
eligibility for Medicare Part B. Eligibility for Part B required me to pay a premium for Medicare in order to
be eligible for TRICARE coverage. Had I been medically retired or kept on active duty, I would not have
been required to obtain SSDI for income and my TRICARE coverage would have continued without a requirement to first pay for Medicare. On January 19,
2016, TRICARE denied paying medical bills saying I
was: "enrolled as Direct Care Only for the date of service." On its medical explanation of benefits, TRICARE
stated: "The patierit is not eligible for TRICARE." The
Government is now requesting $452.64 through the
U.S. Court of Appeals for the Federal Circuit for its legal fees, rather than correcting its negligence.
As a result of retroactively medically retiring me,
the Air Force referred me to the IRS and Social Security for relief. DFAS sent me to the IRS to recover taxes
that it had collected from my backpay. DFAS deducted
25% for taxes from my retroactive retired backpay
when my income was $33,075 in 2006, $0 in 2007 and
$0 in 2008. FITW tax on this income is surely less than
25%. DFAS said it was following the rules. According
to the IRS, one generally must file Form 1040X within
three years from the date one filed one's original tax
return or within two years from the date you paid the
tax, whichever is later. Since these corrections are
more than 3 years in the past, recovering the payment
15
of the 25% taxes that DFAS deducted is unlikely without the Court's help. In its calculations, DFAS also offset my retirement pay by offsets for increased VA
disability payments that I received. So, for example in
2010, my income began to recover and I paid tax on my
military retirement and other income, During this
time, my taxable income was artificially higher because my VA disability had not been finalized yet and
was not reducing my taxable income. Later in 2017,
when DFAS retroactively applied my current, updated
higher VA offset in their calculations, they used the increased VA offset to reduce my military retirement pay
that is due, but DFAS did not provide credit for the extra tax paid in the past on retirement pay, prior to the
increased VA offset. Another disadvantage created for
me by the Air Force's negligence in not medically retiring me is that I was not eligible for a waiver of the 12month waiting period for the full scope of benefits for
Delta Dental insurance coverage. If I had been correctly medically retired in .2006, I would have enrolled
within 4 months after my retirement and would have
been covered for crowns that my teeth required. The
aforementioned tax and dental insurance coverage issues leave me worse off and I am forced to seek tax
advice, too.
I discussed these issues with the AFBCMR, DFAS,
TRICARE and Delta Dental. I exhausted my appeals
with TRICARE and Delta Dental, and in 2010 when I
was retroactively retired to 2006, my claims were beyond the one-year time in which their regulations allow them to pay past claims. Having exhausted claims
16
with TRICARE and Delta Dental, I returned to the AFBCMR and DFAS. After disputing backpay calculations repeatedly with DFAS, a Claims Adjudicator.
from the Department of Defense Office of Hearings
and Appeals sent me a letter denying all four parts of
my claim for reimbursements with DFAS. Notably, he
pointed me to other agencies, not the AFBCMR, for relief. For instance, "The second part of your claim is for
reimbursement in full for your medical and dental expenses because you were discharged in July 2006 rather than being retired for disability, an error that the
AFBCMR corrected under the authority of 10 U.S.C..
1552. The system for providing medical and dental services to retired members of the armed forces is known
as Tricare and that system is established by 10 U.S.C.
chapter 55. Since a member is entitled only to those
payments authorized by statute and regulation, the extent of the reimbursement of your medical and dental
expenses through Tricare is determined by 10 U.S.C.
Chapter 55. There is no provision in 10 U.S.C. 55 for
reimbursement in full for members whose records
have been corrected under 10 U.S.C. 1552. Therefore,
that part of your claim for reimbursement in full for
medical and dental expenses based on your erroneous
The fourth and last
discharge in 2006 is denied
part of your claim is for a refund of the 25% FITW deductions from your retroactive retired pay. Regarding
back pay, IRS Publication 15-A, on-line edition, "Back
Pay," states: 'Treat back pay as wages in the year paid
and withhold and pay employment taxes as required.'
IRS Publication 15-A on-line edition, 'Withholding,' includes a 25% rate for certain pay brackets for persons
...
17
paid on a monthly basis. In applying the 25% FITW
rate to your retroactive retired pay, i.e., back pay,
DFAS-IN followed the tax code as interpreted by the
IRS, the agency that implements the tax code. The
matters of the application and justness of the 25%
FITW is a matter to be resolved by you and the IRS,
not DFAS-IN or our office. That part of your claim for
a refund of the 25% FITW is thus denied." Again, no
relief and the complications caused by retroactive disability retirement cost additional time and money, and
I, nor are other retroactively medically retired service
members, am not afforded the legal protections and
counsel available from the disability system.
Congress passed Public Law 110-18 1, the National
Defense Authorization Act for Fiscal Year 2008,
Wounded Warrior Act, in part, to improve medical care
and resolve problems faced by veterans separated
without medical care and proper processing. Section
1602-1614 of Act provides services, recovery coordinators, medical care case managers, non-medical care
case managers, access to care, transition guidance and
more to assist veterans. Unfortunately, as a former
member, these provisions of the law enacted in January 2008, were too late to apply to me because I was no
longer an active duty member since the Air Force
wrongly separated me in 2006. However, I noted that
section 1631 of the Act, authorizes the Secretary to provide the same medical and dental care as a member of
the Armed Forces to any former member of the Armed
Forces with a serious injury or illness. Since my injury
rendered me unfit, section 1631 enables the Secretary
to pay for the care that I acquired from my medical retirement of July 2, 2006 to the section's sunset of December 31, 2012.
It is unlikely that the Air Force would have processed me to disability retirement in six. weeks (from
May 15, 2006, the date of my permanent disqualification from flying, to July 1, 2006, the actual date of my
separation). Because, if properly retired, I would have
been referred into the Disability Evaluation System
within 60 days of my scheduled separation, I would
have been placed on Medical Hold orders until I completed required medical examinations, treatments, and
disability evaluations. See AFT 36-3212, Ch. 1, 11.10.
When the AFBCMR is unable to precisely ascertain
how long the disability process would have taken, it
makes an educated guess. See, e.g., BC-2010-02769.
•
•
•
The Air Force improperly discharged me from
active duty with severe, deteriorating medical conditions. As the VA subsequently recognized, I was unemployable on the date of my separation. By discharging
me without the disability retirement to which I was
entitled, the Air Force did not fulfill its obligation to
provide full and fitting relief, rather it left me without
income, and caused great additional expense. Furthermore, had the Air Force medically retired me as it should
have, I would have had the opportunity to choose the
type of TRICARE coverage that best suited my needs.
I then would have conformed my medical treatment to
my particular plan of coverage. This may have allowed
me to avoid some of my claimed expenses.
19
AFBCMR Applications
On or about November 11, 2007, I applied to the
AFBCMR requesting that my records be corrected to
reflect a medical disability retirement. I also sought
"recovery of medical expenses and retroactive pay!
promotions." I contended the Air Force unjustly separated me "with unstable and worsening conditions
without a military medical retirement, particularly
since these problems were directly attributable to my
combat aerial flight duty over Iraq and Afghanistan.
The AFBCMR sought advisory opinions from the
Air Force Separation Branch and the Air Force Physical Disability Division. The Air Force Separation
Branch recommended denial, claiming that my "discharge was consistent with the procedural and substantive requirements of the discharge regulation."
The Physical Disability Division recommended denial,
opining, "There was no evidence to indicate he would
have required a medical board. for his conditions to
be referred into the Disability Evaluation System."
.
.
On March 26, 2008 the Board granted my request
that my case be temporarily withdrawn to allow more
time 'to respond. Nevertheless, the AFBCMR's own
medical consultant, Dr. Horace Carson, issued an advisory opinion on May 12, 2008. Dr. Carson conceded that
I should have undergone DES processing but opined
that the likely disability rating would not have entitled
me to medical retirement. Dr. Carson commented that
medical separation with severance pay would have
20
been a "reasonable alternative course of action" had I
requested it.
On December 12, 2008, I disputed the advisory
opinions with a comprehensive memorandum and new
evidence. I included an October 7, 2007 medical report
from Dr. Craig Bash, a neuro-radiologist, who detailed
my medical history and opined that I should have been
processed through DES and medically retired with a
50% rating. On March 4, 2009, Dr. Carson issued a second advisory opinion, 40, recommending that I receive
permanent disability retirement with a 30% combined
disability rating for neck, back, and ischial pain.
On June 10, 2010, the AFBCMR concluded I was
the victim of an error or injustice and recommended
my records be corrected to reflect a permanent disability retirement with a rating of 30%. The Director of Air
Force Review Boards Agency disagreed with the 30%
rating recommendation and directed that my records
be corrected to reflect that I was retired by reason of
physical disability with a 60% rating. With respect to
my claim for reimbursement of expenses, the Board
recommended denial on the basis that the request was
not within its authority.
In response to the AFBCMR decision, the Defense
Finance and Accounting Service WAS) issued me a
check purporting to cover my retroactive retired pay
and past insurance premiums. I did not accept the payments because they didnot fully reimburse me for the
amounts owed, and did not include payment for my
Pil
medical, dental, and related expenses. Pl.'s Resp. at 20,
ECF No. 58.
My request for reconsideration of the AFBCMR's
initial decision
On February 25, 2011, I requested AFBCMR reconsideration of items I believed were not mentioned
in the DFAS "final settlement." In relevant part, I argued that my disabilities should have been treated as
tax-exempt under 10 U.S.C. § 1413a because "the disability was received in the line of duty as a direct result
of armed conflict or caused by an instrumentality of.
war." I also requested (1) immediate TRICARE coverage (the military medical program for retirees) and
coverage retroactive to July 2, 2006; (2) Reimbursement of medical and dental bills; and (3) reimbursement for my first move after retirement.
On June 23, 2011, I filed suit in the Court of Federal Claims, which stayed judicial proceedings while
the AFBCMR processed my reconsideration application. ECF No. 1.
AFBCMR's decision on first request for reconsideration (first addendum)
The AFBCMR sought a third advisory opinion
from Dr. Carson to address my entitlement to CRSC.
Dr. Carson stated that he reviewed my petition "for a
determination that his disability was the direct result
of armed conflict or was caused by an instrumentality
22
of war." He acknowledged that "due to the repetitive
nature and duration of the applicant's flying missions,
which ultimately resulted in permanent disqualification for flying duties, the Medical Consultant could not
rule, out a permanent worsening, or aggravation, of his
ischial pain over time." (Emphasis added).
Concerning my degenerative disc disease of the
cervical and lumbar regions, Dr. Carson opined:
the radiographic evidence alone is insufficient
to show such a process [degeneration] was accelerated by or resulted from the applicant's
flying combat missions; as may be implicated
in high performance aircraft and the effect of
associated sustained high-gravitational forces
over a several year period, upon the cervical,
thoracic, and lumbar spine.
(Emphasis added). He concluded, "in the absence of a
discrete, significant traumatic event productive of biomechanically significant change of anatomical structure," he could find "no direct causal relationship"
between my conditions and my hazardous service.
(Emphasis added).
I responded dn April 2, 2012. For the first time, I
asserted that I was entitled to CRSC because my disability was incurred "while engaged in hazardous service" within the criteria outlined in Department of
Defense Instruction 1332.18, ¶ E3.P5.2.2.2.
On May 21, 2012, the AFBCMR denied my
application, issuing a record of proceedings it characterized as an "addendum." With respect to the CRSC
23
issue, the AFBCMR adopted Dr. Carson's rationale, asserting "there is no direct causal relationship between
the applicant's underlying medical condition(s) and
the conditions are neither combat-related nor an instrumentality of war." (Emphasis added).
Regarding my claim for medical expenses, the
Board recommended denial on the basis that the request was not within its authority. "The AFBCMR is
empowered only to correct records. Determining the
benefits and entitlements that are a consequence of
such corrections is the responsibility of TRICARE and
[DFASI."
My second request for reconsideration
On June 21, 20 12, 1 applied for reconsideration, arguing that the AFBCMR did not address the arguments and evidence in my April 2, 2012 response. I also
detailed my "extensive efforts to secure reimbursement for treatment that would have been provided had
[I] been placed on the Temporary Disability Retired
List and treated while [I] was still in the military."
AFBCMR decision on second request for reconsideration (second addendum)
On December 12, 2012, the AFBCMR issued its
Second Addendum, denying my request. The AFBCMR
requested a third advisory opinion from Dr. Carson,
who "determined that another medical opinion was not
necessary and indicated that he stood by his original
24
recommendation." The Board concluded, "we do not
find a clear linkage between his existing conditions
and a combat-related injury" With respect to the medical-reimbursement issue, the Board stated, "granting
him a medical retirement with TRICARE eligibility
constitutes full and fitting relief."
Third request for reconsideration and the
AFBCMR's decision (third addendum)
On January 23, 2013, I again requested reconsideration and primarily advanced new arguments relating to my requests for reimbursement of medical,
dental, and related expenses. The AFBCMR rejected
the application as not meeting reconsideration criteria,
but upon my motion, the trial court remanded the case
to address the January 23, 2013 request. ECF No. 32.
In a "Third Addendum," the Board denied my application, reaffirming its position as stated in the first
and second addendums. The Board stated that it "is
empowered only to correct military records for the removal of error or injustice" and "cannot enter an order
to direct TRICARE (or DFAS for that matter) to pay
applicant a specific amount."
My remand application and the AFBCMR's decision (fourth addendum)
On January 16, 2015, the Government moved to
remand to the AFBCMR for an advisory opinion from
the Director of Compensation, Office of the Secretary
25
of Defense (Military Personnel Policy) (ODUSD). ECF
No. 72. The AFBCMR is required to procure an advisory opinion from ODUSD in cases involving CRSC
claims but had previously failed to do so. See DoD Directive 1332.41, 13.3. The lower court granted the remand. ECF No. 73.
Thereafter, the AFBCMR required me to submit
an application to the Air Force Personnel Center
(AFPC) Combat-Related Specialty Compensation Board
(CRSC Board), which concluded that I was entitled to
CRSC for tinnitus and fibromyalgia (which are presumptive conditions and were not claimed) related to
my prior Gulf War service, but not for the disabilities
at issue.
The CRSC Board stated it required proof of "a specific combat-related factor rather than from routine
causes or your particular physical make-up." That is,
"Where must be a definite, documented, causal relationship between the armed conflict and the resulting
disability."
Thereafter, ODUSD issued an advisory opinion
after conducting a review using the Directive Type
Memorandum, Revised Guidance on Combat-Related
Special Compensation (CRSC) (April 27, 2004) (DTM)
and Supplemental Guidance on Combat-Related Special Compensation (CRSC) (June 3, 2008).
ODUSD concluded that "[t]he evidence shows that
the applicant's other health issues were incurred as a
result of being hit by a car while riding a bicycle in
1997 and falling in the bathroom in 2004." ODUSD
26
conceded that my conditions had deteriorated over
time but claimed that they were not "incurred in the
requisite manner" for CRSC benefits under section
1413a.
On June 9, 2015, I disputed the recommendations
of the CRSC Board and ODUSD. Three months later,
the AFBCMR issued its decision denying my claims for
CRSC eligibility for his cervical spine, cervical radiculopathy of the upper left extremity, thoracolumbar
sprain, bilateral ischial tuberosity/bursitis, and radiculopathy involving the upper left extremity.
My out-of-pocket expenses and efforts to secure reimbursement
I expended substantial sums for medical and dental care, health insurance, and medications that I
would have received for free had I been afforded disability evaluation and medically retired at the outset.
These amounted to $55,276.27 through 2011. I also incurred moving expenses that would otherwise have
been absorbed by the Air Force.
Following the AFBCMR decision granting me
medical retirement, I sought guidance from DFAS,
which informed me that "Medical and dental reimbursements and combat tax exclusion are not included
in this settlement and were not directed by the Board"
and told me to contact the AFBCMR.
Likewise, I sought reimbursement from TRICARE
but was informed, "the Only option we have to offer
27
you regarding any of the above claims; is the retroenrollment into PRIME as mentioned above (#3)." That
option would require me to pay TRICARE approximately $1100.00 in order to simply submit my claims
for consideration.
which cost me
Concerning my back surgery
$32,340.00 TRICARE asserted that it was precluded
by law from paying for the procedure because it occurred overseas and without prior approval. My efforts
to secure compensation for my dental expenses were
equally fruitless.
-
-
U.S. Court of Federal Claims proceedings
I filed a complaint in the Court of Federal Claims
on June 23, 2011 (ECF No. 1), shortly after I had submitted my first request for reconsideration to the AFBCMR. On May 9, 2016, after three additional requests
for reconsideration, a remand, and three AFBCMR decisions, the Court of Federal Claims granted the defendant's motion for judgment on the administrative
record and denied my cross-motion for judgment on the
administrative record. ECF No. 104.
U.S. Court of Appeals For The Federal Circuit
I filed an appeal, through legal counsel, with the
Federal Circuit on July 6, 2016. The Federal Circuit affirmed the decision of the U.S. Court of Federal Claims
without an opinion on August 21, 2017.
x.1
EIM
REASONS FOR GRANTING THE WRIT
A. This Court should grant certiorari on the
question of whether the AFBCMR provided
full and fitting relief because of the crucial
role the Board plays in the administration
of military justice.
When processes in place to determine fitness for
duty and disability benefits to military service members fail, the Court can act to ensure that benefits constituting "full and fitting" relief.
The military records correction boards combined
adjudicate more than 40,000 applications per year, a
small fraction of which undergoes judicial review. In
this case, the AFBCMR exhibited a disturbing ignorance of its statutory role and authority, ignoring its
legal duty to provide me full and fitting relief.
The AFBCMR has a legal duty to "take 'such corrective action as will appropriately and fully erase
such error or compensate such injustice.'" Roth v.
United States, 378 F.3d 1371, 1381 (Fed. Cir. 2004) (citation omitted). The military correction boards "were
created to remedy wrongs not to confound them."
Duhon v. United States, 198 Ct. Cl. 5643 570(1972). "Judicial relief provided to military servicemen who have
been wrongfully discharged from service has been
premised upon one central principle: making the injured men 'whole.'" Dilley v. Alexander, 627 F.2d 407,
413 (D.C. Cir. 1980).
The Government is holding disability income and
benefits hostage unless the Government is granted
immunity or "full" settlement of all claims, regardless
if all claims are paid. In my application to the AFBCMR I requested, among other things, that I be reimbursed for all costs I "incurred for medical care and
medications on and after July 1, 2006 that would have
been borne by the United States" if I had been medically retired instead of improperly discharged.
To date, I have not been paid all expenses that 1
am owed, and I still do not have the dental insurance I
am entitled to as a retired officer. Incredibly, the AFBCMR first rejected my request for compensation for
out-of-pocket medical, dental, and associated expenses,
stating:
With regard to the applicant's request for
reimbursement of medical expenses, this request is not within the AFBCMR's authority.
The AFBCMR is empowered only to correct
records. Determining the benefits and entitlements that are a consequence of such corrections is the responsibility of TRICARE and
the Defense Finance and Accounting Service.
(Emphasis added).
The Board was clearly wrong because 10 U.S.C.
§ 1552(c)(1) authorizes the military secretaries to pay
those very claims:
The Secretary concerned may pay, from applicable current appropriations, a claim for the
loss of pay, allowances, compensation, emoluments, or other pecuniary benefits, or for the
repayment of a fine or forfeiture, if, as a result
30
of correcting a record under this section, the
amount is found to be due the claimant....
(Emphasis added.)
In its "Second Addendum," the Board modified its
position, stating, "we believe the relief previously provided by the Board, to include granting a medical retirement with TRICARE eligibility constitutes full and
fitting relief." (Emphasis added). In its "Third Addendum," the AFBCMR seemed to accept the validity of
my claims, but erroneously suggested that it had somehow granted me full relief:
In an earlier rationale, the Board explained
for the applicant the process of filing his
claims through TRICARE; this explanation
was not a basis for the denial of his request,
but rather an attempt to assist the applicant
understand his next steps in obtaining the relief the Board had already granted him.
(Emphasis added).
The AFBCMR fundamentally misunderstood its
duties and authorities under section 1552, particularly
its authority to pay my claims for out-of-pocket medical, dental, travel, and related expenses. The AFBCMR
similarly misunderstood the scope of its legal duty to
direct full and fitting relief.
Section 1552(c)(1) unambiguously authorizes the
Secretary to pay an applicant's claims through the Defense Finance and Accounting Service WAS). There
31
are two pre-conditions for the Secretary's exercise of
that authority.
The first condition is that there has been a correction of the applicant's records. Section 1552(h) defines
a "military record" as:
a document or other record that pertains to (1)
an individual member or former member of
the armed forces, or (2) at the discretion of the
Secretary of the military department concerned, any other military matter affecting a
member or former member of the armed
forces. . . .
-
(Emphasis added.)
Section 1552(h)(2) therefore extends the Secretary's correction authority to military "matters" beyond
those contained in an applicant's official service and
medical records. That extraordinary grant includes authority to change a "mistake or an omission bearing on
pay whether factual or legal. ." Oleson v. United
States, 172 Ct. Cl. 9, 19 (1965). "[lIt is hard to imagine
a more sweeping charter, or one that is more entitled
to a generous rather than a constricted reading." Pl.'s
Resp. at 31, ECF No. 58.
-
.
.
The second condition for payment is that as a result of such correction, the claimed "amount is found to
be due. . . ." See 32 C.F.R. § 865.7. While DFAS computes the amount due, the AFBCMR must specify the
relief an applicant is entitled to.
32
Applying the plain and unambiguous language of
section 1552(c)(1) to my claims, it is indisputable that
they are fully compensable by the AFBCMR.' See also
Dilley, 627 F.2d at 414 ("Most fundamental, to appellants' reimbursement is an award of back pay; under
section 1552(c), this is lumped with other remunerations of service, including 'pay, allowances, compensation, emoluments or other pecuniary benefits").
My claims for out-of-pocket expenses should have
been uncontroversial. My release from active duty
on July 1, 2006 without disability evaluation was erroneous and unjust. Because the Air Force neglected to
process me in accordance with its own regulations, I
incurred more than $50,000.00 in medical, dental, and
related expenses post-discharge. Those are precisely
the types of claims Congress authorized the AFBCMR
to compensate.
In my case, the AFBCMR failed to take "'such corrective action as will appropriately and fully erase
such error or compensate such injustice." Roth v.
United States, 378 F.3d 1371, 1381 (2004) (citation
omitted).
The AFBCMR's assertion that it "cannot enter an order to
direct TRICARE to pay the applicant a specific amount," is at odds
with its actions in other cases. See BC-2013-03022 (directing
reimbursement of $1,295.50 "for travel and per diem"); BC-201203947 (directing "reimbursement of $3,780.95 for personally procured move"); BC-2013-05143 (directing a payment of $25,000.00
under the Traumatic Injury Protection Program (TSGLI)); BC2013-01503 (directing payment of $3,152.00 for "reimbursement
of actual expenses incurred" for storage).
'
33
I followed the AFBCMR's guidance and sought reimbursement from DFAS. DFAS telephonically informed me on or around October 28, 2010 that "Medical
and dental reimbursements and combat tax exclusion
are not included in this settlement and were not directed by the Board. Talk to Board." Subsequent computations and offers of settlement by DFAS likewise
have not included my out-of-pocket expenses.
I also sought reimbursement directly from TRICARE. TRICARE informed me that "the only option we
have to offer you regarding any of the above claims; is
the retro-enrollment into PRIME as mentioned above
(#3)." That option required me to pay TRICARE some
$1100.00 to simply have my claims considered.
which cost me
Concerning my back surgery
$32,340.00 TRICARE asserted that "by law, [it] is not
able to pay any portion of this claim. The medical
claims would require preauthorization and the TRICARE Travel benefit does not cover travel overseas." I
encountered a similar bureaucratic dead-end concerning my dental expenses.
-
By sending me hat-in-hand to DFAS, TRICARE,
and Delta Dental, the AFBCMR abdicated its legal
duty to provide full and fitting relief. The AFBCMR's
recalcitrance is difficult to understand. It acknowledged that I am entitled to recover my medical, dental,
and related expenses. Yet the Board refused to take the
simple steps necessary to make me whole.
Additionally, during the U.S. Federal Court of
Claims hearing, my counsel requested that my full
34
military administrative record be submitted to the
Court and presented the issue of reprisal. "In addition,
for a case that is heavily involved with medical records
we felt the Government had a duty to file Major
Adams' entire health record; and the Government
And I think that
thought that was unreasonable.
that was wrong. The Court did not compel the Government to provide the full record, despite the DOJ attorney acknowledging that he was uncertain what was in
the record. The Court questioned him. "So, what other
medical records are there?" Mr. Laufgraben answered:
"I'm unaware of what exactly consists of the entire personnel record." My record includes records showing
combat relation, a retaliatory investigation, an Air
Force finding that personnel actions were taken
against me while I was a whistleblower, and letters
showing amounts that the Government has told the
Court are paid, in fact, are not paid. Specifically, when
a Court is to adjudicate the issue of a veteran's potential eligibility for medical-related benefits, as is the
case here, the U.S. Court of Appeals for Veterans
Claims has found that Courts are clearly erroneous
when they fail to assist the veteran in submitting all
relevant medical records (Froio v. Shinseki, 2014 WL
594096, 2014).
.
.
.
35
B. The Court should grant certiorari to clarify
the proper standard to be applied to service
members and veterans who incur disabling
medical conditions while engaged in hazardous service, and who thus qualify for
monetary benefits under 10 U.S.C. §1413a.
It is likely that hundreds, if not thousands, of individuals have been wrongly denied Combat Related
Special Compensation due to the misinterpretation of
the statute by the Department of Defense and the military departments.
A. Applicable law and regulations
(1) 10 U.S.C. § 1413a.
Combat Related Special Compensation is established by 10 U.S.C. § 1413a. Section 1413a(a) directs the
Secretary concerned to "pay to each eligible combatrelated disabled uniformed services retiree
a
monthly amount for the combat-related disability of
the retiree determined under subsection (b)."
.
.
.
Section 1413a(e) defines "combat-related disability" by reference to the law of the VA:
In this section, the term "combat-related disability" means a disability that is compensable under the laws administered by the
Secretary of Veterans Affairs and that
-
(1) is attributable to an injury for which the
member was awarded the Purple Heart; or
36
(2) was incurred (as determined under criteria prescribed by the Secretary of Defense)
-
as a direct result of armed conflict;
while engaged in hazardous service;
in the performance of duty under conditions simulating war; or
through an instrumentality of war.
(Emphasis added.)
(2) What is a "disability" under the law
Of the VA?
VA law defines "disability" as the "impairment
in earnings capacity resulting from such disease and
injuries and their residual conditions." Davis v. Principi, 276 F.3d 1341, 1344 (Fed. Cir. 2002) (quoting
38 C.F.R. § 4.1.) (Emphasis added). See also Allen v.
Brown, 7 Vet. App. 439, 447-48 (1995) (same); and 42
U.S.C. § 423(d)(1) (defining disability as the "inability
to engage in any substantial gainful activity by reason
of any medically determinable physical or mental impairment.... .") (emphasis added). "Such a definition of
'disability' f&llows the overall statutory and regulatory
purpose of the veterans' compensation law. This purpose is reflected in the ratings system, which rates
different mental and physical maladies based on diminished earning capacity... ." Hunt v. Derwinski, 1
Vet. App. 292, 296-97 (1991).
37
The Air Force similarly defines "disability" as:
Any impairment due to disease or injury, regardless of degree, which reduces or precludes
an individual's actual or presumed ability to
engage in gainful or normal activity.
See Air Force Instruction 36-3212 ("Terms") (emphasis added).
(3) When is a disability compensable
under the law of the VA?
38 U.S.C. § 11312 establishes the basic entitlement
to VA disability compensation for service during peacetime:
For disability resulting from personal injury
suffered or disease contracted in line of duty,
or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in
the active military, naval, or air service, during other than a period of war, the United
States will pay to any veteran thus disabled
and who was discharged • or released under
conditions other than dishonorable from the
period of service in which said injury or disease was incurred, or preexisting injury or
disease was aggravated, compensation as provided in this subchapter.
(Emphasis added.)
The wartime standard is nearly identical. See 38 U.S.C.
§ 1110.
2
Section 1131 thus authorizes compensation for
disabilities (a) that result from injuries and diseases
that occur or arise after entry into the military that are
in the line of duty and that become disabling, and (b)
that pre-exist military service and are aggravated in
the line of duty to the point of disability. "Aggravation"
is defined at 38 U.S.C. § 1153 as:
A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an
increase in disability during such service, unless there is a specific finding that the increase
in disability is due to the natural progression
of the disease.
(Emphasis added.)
(4) Disabilities "Incurred While Engaged
in Hazardous Service."
In section 1413a(e)(1)(B) Congress authorized the
Department of Defense to prescribe criteria for determining whether a disability is "incurred" under one or
more of the four statutory categories of CRSC claims.
DoD Directive Type Memorandum (DTM) (April
27, 2004)
The DTM, Attachment 1, addresses combatrelated disabilities other than those for which the Purple Heart Medal has been awarded, providing, "The
Military Departments will determine whether a disausing the definitions and
bility is combat-related
...
39
criteria set forth in attachment 1-1 and this memorandum." It further provides, "A determination of combat.relatedness will be made with respect to each separate
disability with an assigned medical diagnosis code
from the VASRD."
Attachment 1-1 of the DTM addresses disabilities
"incurred" while "engaged in hazardous service,"
providing:
Such service includes, but is not limited to,
aerial flight, parachute duty, demolition duty,
experimental stress duty, and diving duty. A
finding that a disability is the result of such
hazardous service requires that the injury or
disease be the direct result of actions taken in
the performance of such service. Travel to and
from such service, or actions incidental to a
normal duty status not considered hazardous
are not included.
(Emphasis added).
Section 1413a(e)(2)(B) is unambiguous in not imposing on CRSC applicants the burden of proving that
a disability is "a direct result" of their hazardous service. Rather, the statute demands only that applicants
prove their disabilities were incurred while engaged in
hazardous service.
B. The DTM criteria for "hazardous service" claims cannot be reconciled with
io U.S.C. § 1413a and therefore is invalid.
With regard to hazardous service, section
1413a(e)(2) tasked the Secretary of Defense with prescribing criteria to guide the determination of when a
disability is incurred while engaged in such service, not
when a disability is a direct result of such service. Yet
the Secretary imposed a direct causation requirement
where Congress precluded it by its own choice of language. By doing so the Secretary entirely undermines
the CRSC scheme.
(1) The Secretary exceeded his delegated authority.
Congress made a conscious decision in section
1413a(e)(2)(A)-(D) to employ different standards for
each CRSC category. For "armed conflict," the statute
requires that an applicant show his or her disability
was incurred "as a direct result of armed conflict." For
"hazardous service," however, Congress only requires
an applicant show that his or her disability was incurred while engaged in such activity. The distinction
is material and the statutory language is controlling.
•
•
"Incurred" in this context cannot mean what the
DTM construed it to mean, which is "the direct result
of" By employing different standards for the different
categories of CRSC entitlement, Congress plainly intended different criteria to apply. See Sosa v. Alvarez-
41
Macham, 542 U.S. 692, 712 n. 9 (2004) (noting the
"usual rule that when the legislature uses certain language in one part of the statute and different language
in another, the court assumes different meanings were
intended").
Congress' choice to not employ the term "as a direct result of" in relation to "hazardous service" reflects a conscious choice to not impose such a causation
requirement on applicants. But the DTM does what
Congress did not do by requiring that "the injury or
disease be the direct result of actions taken in the performance of such service."
The DTM's equation of "incurred" with "the direct
result of" renders redundant Congress' use of the term
"as a direct result of" atsection 1413a(e)(2). Such interpretation "violates the cardinal rule of statutory interpretation that no provision should be construed to
be entirely redundant." Kungys v. United States, 485
U.S. 759,778 (1998). "Causation" and "incurrence" are not
synonymous, and "the direct result of" implies direct
causation. If Congress wanted to establish a direct result causation requirement for each category of CRSC
claim, it simply needed to say "caused" or "directly
caused" rather than "incurred" in section 1413a(e)(2).
But it did not, and the Court must proceed on the
ground that Congress said what it meant and meant
what it said there. Connecticut Nat. Bank v. Germâin,
503 U.S. 249,253-54(1992) (citing United States v. Ron
Pair Enterprises, Inc., 489 U.S. 2353 241-242 (1989);
United States v. Goldenberg, 168 U.S. 95, 102-103
(1897); Oneale v. Thornton, 6 Cranch 53, 68 (1810)).
42
(2) The DTM excludes categories of
claimants that Congress expressly
included in section 1413a.
Because the VA defines "disability" as the impairment resulting from a condition or an injury, not as the
underlying condition or injury, section 1413a only required that I prove that my disabilities (impairments)
were incurred while engaged in hazardous service. The
DTM's additional requirement that applicants prove
that "the injury or disease [is] the direct result of actions taken in the performance" of hazardous service is
an abuse of discretion and contrary to law. (Emphasis
added.)
The DTM language excludes from CRSC benefits
all applicants except those whose underlying injuries
or conditions are the direct result of hazardous service.
It excludes applicants such as me because they cannot
prove an existing injury or disease is the direct result of
their hazardous service. If a service member with an
existing, in-service knee injury that is not disabling engages in hazardous service and thus aggravates the existing injury to the point of disability, he cannot recover
under the CRSC because his injury is the direct result
of his strength training, not his hazardous service. Yet
the service member can recover if the same disabling
knee injury is originally suffered while performing the
same hazardous service.
Furthermore, the DTM language altogether negates the legal doctrine of aggravation, which Congress
expressly incorporated into the CRSC scheme. That is
MW
because by definition preexisting conditions exist before entry into military service and applicants cannot
possibly prove such conditions are the direct result of
hazardous service.
Congress avoided such irrational outcomes by not
imposing a direct result causation requirement on
every CRSC category. Congress could not have intended to include existing and preexisting conditions
within the scope of CRSC and simultaneously exclude
them by requiring a showing that the underlying injury or disease was the direct result of hazardous service. Yet that is what the DTM achieves.
C. The AFBCMR erred by requiring a
direct-cause relationship between my
underlying conditions and my hazardous service.
The DTM's impermissible standard permeated
the proceedings below, with each organization advancing its own rendition of the direct result causation requirement. Indeed, the AFBCMR, the CRSC Board,
and the Department of Defense imposed requirements
stricter than those of the DTM.
In its first addendum, the AFBCMR restricted the
DTM criteria even further by requiring proof of "a discrete, significant traumatic event productive of biomechanically significant change of anatomical structure."
(Emphasis added). The AFBCMR's December 28, 2012
(Second Addendum) decision denied my CRSC claims
on the same grounds stating, "[w]e do not find a clear
linkage between his existing conditions and a combatrelated injury."
On remand from the Court of Federal Claims,
the AFBCMR, in its Fourth Addendum, denied my
CRSC claim based on advisory opinions from the
CRSC Board and the Department of Defense. Both
opinions applied the DTM's unlawful standard to my
CRSC claims. According to the CRSC Board, to qualify
causal relafor CRSC benefits, "[t]here must be a
hazardous service and the
tionship between the
resulting disability. While sitting/flying in an aircraft
for extended periods may be considered 'a period of
hazardous service' as stated about [sic], this is not sufficient in and of itself for a combat-related determination." The CRSC Board explained that it "looks for
confirmation of direct exposure to a specific combatrelated event and the resulting injury." (Emphasis
added).
.
.
.
.
.
.
CONCLUSION
The Supreme Court exists to provide judicial review of the Legislative and Executive branches. Precedents are needed to establish the entitlements of
military retirees and more specifically military retirees that are retroactively retired.
Military members and their families depend on
the U.S. Government to provide for them and their
families if they become disabled. The Air Force circumvented the law by providing less benefits than I would
45
have received had I been medically processed and retired as required. This is an opportunity for the U.S.
Supreme Court to check the Air Force and other Services by providing guidance that offering a lower level
of benefits to retroactively medically retired service
members and coercing acceptance of these benefits
violates 10 U.S.C. § 1552 and 10 U.S.C. § 1413a. How
are disabled individuals who are wrongfully terminated without benefits and suffer additional harm due
to not having guidance, resources, legal counsel and
appeals that are mandated by Congress and the retirement system itself protected, and made whole, if not by
the Supreme Court?
Further, in this case, a full blown evidentiary proceeding is needed to ensure a full and fair hearing (10
U.S.C. § 1214) since the PEB process was not followed
and the full administrative record was never made
available by the Government, though it was requested
by Counsel and a FOJA. A full and fair hearing has not
been provided.
For all these reasons, this Court should grant the
petition.
Respectfully submitted,
MAJOR ALAN AII\lvls, USAF, RETIRED
Petitioner
101 Taylor Avenue N, Apt. 415
Seattle, WA 98109
(509) 294-0875
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.