Month: January 2022

Voluntary Remand of BCNR Decision Nealy v. Del Toro

Posted on by Becky Haugen

Press Release: The Law Offices of David P. Sheldon Secures Voluntary Remand of BCNR Decision

Law Offices of David P. Sheldon PLLC

100 M St SE, Suite 600

Washington, DC 20003

(202) 546 9575

www.militarydefense.com

Read the Complaint Here

The Law Offices of David P. Sheldon Secures Voluntary Remand of BCNR Decision

On December 29, 2021, the Law Offices of David P. Sheldon filed a motion for judgment on the administrative record in the matter of Nealy v. Del Toro, et al. First Class Petty Officer Sean Nealy suffered from severe PTSD following his service in Afghanistan and Iraq working as a sensor operator and technician, coordinating, observing and assessing air strikes while flying above the battlefield. The Physical Evaluation Board merely saw him as a conscientious observer, denigrated his service, and denied him a disability retirement. The Board for Correction of Naval Records, stunningly, concurred with this assessment, finding that Mr. Nealy had not show that he had suffered a “highly stressful event,” despite his direct participation in combat.

In the face of the submitted motion for judgment on the administrative record, the BCNR proposed to the office that the matter instead be voluntarily remanded for further consideration by the BCNR. Our office has accepted. This matter is now returning to the BCNR for the Board to reassess their prior decision, pending the need for further litigation.

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Law Offices File Suit on Behalf of Scapegoated USN Commander to Challenge Wrongful and Unsupported BCNR Decision

Posted on by Becky Haugen

Press Release: Scapegoated USN Commander Eric Cash

Law Offices of David P. Sheldon PLLC

100 M St SE, Suite 600

Washington, DC 20003

(202) 546 9575

www.militarydefense.com

Read the Complaint Here

The Law Offices of David P. Sheldon file Suit on Behalf of Commander Cash in the District Court for the District of Columbia to have the wrongful and unsupported BCNR decision overturned, and Commander Cash’s charges cleared.

The Navy’s struggle with new ship classes has not been limited to the Littoral Combat Ship. The San Antonio class of amphibious transport docks have been similarly troubled since they first entered the planning stage in 1996. This included severe safety concerns, first discovered in a Navy study in 1998, whose recommendations were never implemented and whose revelations were never told to the future captains of the ships.

The problems with the San Antonio class tragically finally came to a fore with the tragic death of Ensign Theophilus Ansong in 2009, while a small boat was being lowered to transport personnel to another ship. This death was investigated, and responsibility was firmly placed on the safety vulnerabilities of the San Antonio class. The U.S. Navy sent out an emergency alert to change boat launching procedures, and engaged in a massive study of the class, leading to $1 billion in suggested modifications and operational reforms.

Commander Eric Cash and his executive officer Lieutenant Sean Kearns were counseled for the event, but the Navy recognized that it was not their fault. For more than a year, this is where matters ended. However, in May of 2010, Congress made it clear that it intended to conduct hearings on naval readiness, with a particular focus on the San Antonio class. Admiral John C. Harvey was notified that he would be called. In preparation for the hearing, Admiral Harvey decided to resurrect the incident and bring Article 92 charges for dereliction of duty against Commander Cash, Lieutenant Commander Kearns, and the boatswain who had overseen the operation. The grounds were failing to issue a special watch bill, despite it not being required by U.S. Navy practices at the time, and failure to ensure proper supervision, despite all the involved personnel being highly trained and qualified.

Lieutenant Commander Kearns had since left the San Antonio and thus had the right to demand court-martial instead of non-judicial punishment. Within the scope of this evidentiarily rigorous process, both the Government’s and Lieutenant Commander Kearns’ expert witnesses established that a special watch bill wasn’t needed at the time, and the supervision had been adequate. It confirmed what everyone, but Admiral Harvey had been well aware of, Ensign Ansong’s tragic death was due to the faults of the San Antonio class and how the Navy chose to operate them. Following his acquittal on the charges, Lieutenant Commander Kearns would go on to have a flourishing career, making Captain, commanding the USS Constitution, the oldest ship in the fleet, and he is now the head of an NROTC program.

Commander Cash was not so fortunate. He was still at sea, commanding the San Antonio, when charges were pressed against him, and thus did not have the right to the significantly greater evidentiary rigor of court-martial. Though Admiral Harvey still had the right to grant him that, the Admiral wanted to ensure that Commander Cash went through an evidentiarily weaker process. He forced Commander Cash to undergo non-judicial punishment in absentia. The charges were upheld, thanks to the lack of expert testimony and the much sparser evidentiary record. A punitive letter of reprimand was placed in his record and his career was functionally over. Despite being granted the highest possible evaluations over the next five years he was passed over for promotion to Captain thanks to Admiral Harvey’s actions.

In 2018, with the help of the firm, Commander Cash sought to have the Board for Correction of Naval Records undo this injustice. Stunningly, despite the legal advisor specifically noting the strength of his application, the charges were still upheld, on the spurious grounds of what could have been before the NJP. The fact that the same charges on the same nexus of facts resulted in acquittal when a proper evidentiary record was built was ignored, and the civilians of the Board declared that a special watch bill had been “clearly needed.”

Now, these twin injustices are finally set to be corrected. The Law Offices of David P. Sheldon have filed suit in the District Court for the District of Columbia to have the wrongful and unsupported BCNR decision overturned, and Commander Cash’s charges cleared. By the end of this year Commander Cash will have been returned to where he should be. The punitive letter of reprimand and the charges will have been cleared from his record and he will be before a special selection board for a proper consideration for promotion to Captain. The path for Commander Cash to clear his good name and return to the Navy he so deeply loves begins now.

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Successful Defense for PHS Officer at Board of Corrections

Posted on by Becky Haugen

The Law Offices of David P. Sheldon successfully represented an officer at the PHS Board for Corrections. The firm argued that the officer should receive years of constructive service credit for education, which is now being retroactively applied to the officer’s retirement pay multiplier.  The officer stands to make hundreds of thousands in additional retirement pay in the circumstance.

Law Offices of David P. Sheldon File Federal Complaint on Behalf of Wrongfully Accused Army Reserve Colonel

Posted on by Becky Haugen

Press Release: Nell v. Wormuth et al.

Law Offices of David P. Sheldon PLLC

100 M St SE, Suite 600

Washington, DC 20003

(202) 546 9575

www.militarydefense.com

Read the complaint here.

The Law Offices of David P. Sheldon File Federal Complaint on Behalf of Wrongfully Accused Army Reserve Colonel

On December 10, 2021, the Law Offices of David P. Sheldon filed a federal complaint opening the matter of Nell v. Wormuth, et al. in the District Court for the District of Columbia. Army Reserve Colonel Karl Nell was falsely accused of whistleblower retaliation by a vindictive subordinate, who was seeking to avoid consequences for their failure to perform their duties and their attempts to sabotage Col. Nell’s reform efforts for a badly under performing unit. These false accusations were found substantiated by the Department of the Army Investigator General, despite two different investigating officers expressing deep concerns about the accuser’s truthfulness. Despite Col. Nell demonstrating the factual errors in the investigation report no less than seven times to both the Army Board for the Correction of Military Records and the Department of the Army I.G., these findings were repeatedly upheld. In its last decision, the ABCMR went so far as to hold that nonbinding commentary overrode its statutory authority to set aside IG findings.

Having been repeatedly stonewalled by the Department of Defense institutions tasked with correcting errors or injustice, Col. Nell came to the firm in April of 2021 to clear his good name of these wrongful findings. Now, the path to relief for him has begun with the filing of the federal complaint. The firm will be moving for partial summary judgment shortly, in order to set aside the ABCMR’s completely unsupported final decision, which was in blatant violation of its own foundational statute.

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Law Offices of David P. Sheldon filed a motion for summary judgment in Nealy v. Braithwaite, in the District Court for the District of Columbia.

Posted on by Becky Haugen

Press Release: Nealy v. Braithwaite

Law Offices of David P. Sheldon PLLC

100 M St SE, Suite 600

Washington, DC 20003

(202) 546 9575

www.militarydefense.com

Read the filing here.

The Law Offices of David P. Sheldon Move for Summary Judgment on Behalf of Disabled Special Forces Veteran

On December 29, 2021, the Law Offices of David P. Sheldon filed a motion for summary judgment in Nealy v. Braithwaite, in the District Court for the District of Columbia. Navy First Class Petty Officer Sean Nealy was a sensor technician and operator, maintaining and operating optic and communication tools in electronic warfare planes supporting special forces operations all around the world. This included coordinating and directing air strikes in support of American operations, including both in Afghanistan and Iraq, among other locations. This was not remote work either, Mr. Nealy did so while over the battlefield, often at low altitudes and while facing hostile anti-aircraft fire.

In 2006 Mr. Nealy coordinated an airstrike which led to the deaths of 180 enemy combatants in Afghanistan. Following this strike, which was but the first day in a week where he would coordinate strikes which would kill 360 enemy combatants, Mr. Nealy began suffering from psychological wounds. Upon return from deployment, he began showing strong symptoms of PTSD and reported his symptoms to Navy medical personnel, resulting in a diagnosis of acute PTSD. His psychological wounds would prove to be so severe as to result in his honorable separation from the Navy on disability grounds in 2008.

However, Mr. Nealy’s service was denigrated by the Physical Evaluation Board, who saw him merely as a conscientious observer and someone who hadn’t participated in “real” combat. Though separating him from the Navy under honorable conditions, they denied him the disability retirement he was due under statute and labeled his psychological wounds “non-combat related.” In 2017 Physical Disability Board for Review doubled down on the PEB’s denigration of Mr. Nealy’s honorable service and upheld these findings. In addition, the PDBR also repeatedly violated its statutory requirements by ignoring the arguments raised by Mr. Nealy and failing to properly consider the Veterans Affairs Administration disability rating for him.

Now, Mr. Nealy is on the path to having this wrongful decision corrected and to being granted the disability retirement that he is due for the wounds he suffered while serving his county. The Firm has filed a motion for summary judgment on his behalf which will clear the PDBR’s wrongful decision and direct it to find that Mr. Nealy qualified for a disability retirement and that his wounds were combat related. Should the Firm succeed, it will also move for Mr. Nealy to be awarded the attorneys fees and expenses he was forced to endure in the process of correcting the military’s refusal to grant him what he had earned.

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