What You Need to Know: Soldiers worry that ROTC admin error could upend retirement plans

The U.S. Army Cadet Command’s inspector general published guidance noting that federal law “strictly prohibits” members of G2GADO and other ROTC initiatives from counting the years they spent as cadets towards their official time in service. (Army Times)

Read Article: Soldiers worry that ROTC administrative error could upend retirement plans.

Air Force Sergeant’s Family Brings Medical Malpractice for Wrongful Death of Airman

Press Release: Air Force Sergeant’s Family Brings Medical Malpractice for Wrongful Death of Airman

Law Offices of David P. Sheldon PLLC

100 M St SE, Suite 600

Washington, DC 20003

(202) 546 9575

www.militarydefense.com

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On December 1, 2023, under the Military Claims Act (NDAA), the firm filed a claim on behalf of the family of an Air Force Sergeant, who tragically lost his life due to poor care and medical negligence.

This case involved our client’s husband, an active-duty Tech Sergeant serving in Korea, who was experiencing severe chest pains while carrying out his duties on base. The Airman went to the emergency room to find out why he was experiencing such extreme pain. Though he had all the signs of onset heart disease, the medical doctor who provided care not once, but twice, failed to thoroughly investigate his symptoms or refer him to a cardiologist. The medical providers attributed his symptoms to mere heartburn. Just days later, the Airman tragically collapsed and died of avoidable cardiac arrest. This left our client with unimaginable grief, questions, and cries for justice.

The Law Offices of David P. Sheldon has worked tirelessly to correct this injustice by filing a claim against the United States Army Claims Service for personal injury or death caused by the Department of Defense healthcare provider. The firm retained three renowned experts on behalf of the client, had the client’s spouse evaluated and the medical experts provided a medical opinion, which recommended that the DoD medical provider failed to meet the requisite standard of care for emergency room physicians and negligence was irrefutable. The Army has acknowledged the validity of our client’s claim and upon adjudication our client is eligible to recover damages up to $15,500,000.

The Law Office of David P. Sheldon has critical experience in these newfound issues. The firm has helped countless dedicated nonuniform and uniform military, Army, Marine Corps, Navy, and Air Force officers obtain the legal relief they deserve. If you are a uniformed servicemember, and a victim of personal injury or death caused by a DoD health care provider, we are here to help.

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In The News: Navy Officer Convicted in ‘Dateline’ Death Gets More Time for Appeal

Navy officer convicted in ‘Dateline’ death gets more time for appeal

Press Release: Federal Court Rules Medical Malpractice Claims Against Department of Defense Tolled By Servicemembers’ Civil Relief Act

Order             Motion          Print PR

Press Release: Federal Court Rules Medical Malpractice Claims Against Department of Defense Tolled By Servicemembers’ Civil Relief Act

On October 31, 2023, the Honorable Rudolph Contreras, District Judge for the United States District Court for the District of Columbia, denied the government’s motion to dismiss in Larumbe v. Secretary of Defense, holding that medical malpractice claims against the Department of Defense (“DoD”) are tolled by the Servicemembers’ Civil Relief Act (50 U.S.C. § 3936). The Court’s ruling marks a significant victory not only for the plaintiffs in this action, but for all those who seek to hold the DoD accountable for medical malpractice under 10 U.S.C. § 2733a.

In January of 2019, Maria Martinez, who was on active duty in the United States Army, became concerned about her health and requested a medical screening for breast cancer. An oncologist evaluated Martinez. Based on Martinez’s family history, possession of the BRCA2 gene mutation, and physical symptoms, the oncologist recommended that Martinez’s primary care physician perform a diagnostic MRI to determine whether Martinez had breast cancer. Martinez’s primary care physician, however, incorrectly ordered a screening, rather than a diagnostic, MRI. Because of this negligent clerical error, DoD’s health insurance denied Martinez the screening MRI on three separate occasions. Each time, Martinez was told she did not meet the criteria for a screening MRI. Inexcusably, Martinez’s primary care physician also failed to order any different type of procedure to determine whether Martinez had breast cancer. Ten months after Martinez first requested breast cancer testing, she was admitted to an emergency room with shortness of breath. Finally, a doctor gave Martinez a diagnostic examination, including a biopsy, which confirmed that Martinez had breast cancer. By this stage, though, there was nothing that could be done – Martinez’s breast cancer had become so advanced that it was incurable. Tragically, and as a direct result of incompetent medical treatment she received from DoD providers, Martinez died at the age of 26 in December of 2021.

A month before her death and while still serving in the military, Martinez filed a claim for medical malpractice with the DoD. The Department of Army Tort Claims Division denied Martinez’s claim, asserting that her claim was untimely filed. After her death, Eduardo Larumbe and Christopher Fernando Montas Correa —Martinez’s father and husband, respectively – appealed the denial to the Defense Health Agency’s Military Malpractice Claim Appeals Board, which affirmed the denial, again based on untimeliness. Plaintiffs then sued under the Administrative Procedure Act (5 U.S.C. § 701 et seq.). requesting that the District Court set aside as unlawful the DoD’s denial of Martinez’s medical malpractice claim under 10 U.S.C. § 2733a.

The government moved to dismiss the case, arguing first that 10 U.S.C. § 2735 bars judicial review of the plaintiffs’ medical malpractice claim, and second that the plaintiffs’ claim was not timely filed, because 10 U.S.C. § 2733a requires actions to be filed within two years of accrual.

The Court denied the government’s motion to dismiss, rejecting both of the government’s arguments. First, the Court determined that while 10 U.S.C. § 2735 does bar judicial review in certain instances, that bar of judicial review does not extend to instances where a plaintiff’s due process rights have been violated. The Court held that in the present case, the plaintiffs had asserted a violation of their due process rights, because the government failed to consider the tolling of the statute of limitations for Martinez’s medical malpractice claim, as required by the Servicemembers’ Civil Relief Act. For this reason, the Court also rejected the government’s second argument, and held that the tolling provisions of the Servicemembers’ Civil Relief Act apply to military medical malpractice claims brought under 10 U.S.C. § 2773a. Because Martinez was serving in the military at all times relevant to the litigation, the Servicemembers’ Civil Relief Act tolled the statute of limitations, and her claim was timely filed.

Although this is a major victory for Eduardo Larumbe and Christopher Fernando Montas Correa, the fight is not over. The firm is proud to represent these men and carry Maria Martinez’s legacy of service. We will not rest until justice is done.

If you or a friend or loved one in the service has experienced medical malpractice at the hands of DoD medical providers, the Servicemembers’ Civil Relief Act can help ensure that your claim is timely filed and that you receive the relief you deserve.

For more information, please contact:

LAW OFFICES OF DAVID P. SHELDON, PLLC
100 M Street SE, Suite 600
Washington, DC 20003
(202) 546 9575 (w)
(202) 546 0135 (f)
www.militarydefense.com

Testimonial: US Army Female Non -Commissioned Officer gets Relief at ABCMR, Discharges as Honorable

I wish to express my deep gratitude to the Law Offices of David P. Sheldon.  As a non-native female soldier, I found it very difficult to navigate the military to correct records and reverse an “other than honorable discharge.” The errors in the military records cost me opportunities to find employment and damaged my self-esteem, feeling shame from the harsh realities of this blemish on my military service and records. In a word, the wrongful records kept me from pursuing a life free from shame and distrust of others as a foreign-born citizen and soldier.

In 2016 I reached out to the Law Offices of David P. Sheldon. I found the team to be supportive, compassionate and kind to me. Their heart-felt interest in helping me get the records corrected gave me hope that I could mend the wrongs that had been done against me. Needless to say what a great win it was to receive my Certificate of Honorable Discharge. I can now apply for jobs with the confidence that I have a solid honorable discharge in my military service records. Additionally, I have gained partial relief in the ABCMR, the final victory in this very difficult time.

Sir, there are no words that come close to expressing the depths of my appreciation. I admire the team in their abilities to navigate this ABCMR. My future has been returned back into my own hands and for this I am so grateful. Thank you for restoring my dream, and my dignity.

As a female soldier, foreign born where my language and cultural abilities are not as sophisticated as an American born citizen, I found compassion and kindness in the face of adverse conditions that were not easy to navigate. I highly recommend the Law Offices of Attorney David P. Sheldon, PLLC.

O.R., Army Sgt. US Army Female Non -Commissioned Officer
of Special Operations Command, Freedom Fighter/Warrior.

First loss of a baby, then loss of legal rights.

Navy chaplain Mercedes Petitfrere has accused Naval Medical Center Camp Lejeune of substandard medical care that she believes cost her son’s life and resulted in his stillbirth. (Amanda Andrade-Rhoades for The Washington Post)
Navy chaplain Mercedes Petitfrere has accused Naval Medical Center Camp Lejeune of substandard medical care that she believes cost her son’s life and resulted in his stillbirth. (Amanda Andrade-Rhoades for The Washington Post)

First loss of a baby, then loss of legal rights.

After enduring a stillbirth, a Navy chaplain discovers she can’t sue a military hospital for medical malpractice.

Article: Washington Post, Ian Shapira, September 14, 2023

Service Members Facing Disability Discharge for 9/11 Related Duty May be Eligible  for Combat Related Special Compensation 

Major Morrissey’s petition was granted on the grounds that he was engaged in hazardous duty and therefore qualifies for CRSC,
Major Morrissey’s petition was granted on the grounds that he was engaged in hazardous duty at 9/11 terrorist attack on the World Trade Center Towers and therefore qualifies for CRSC.

Service Members Facing Disability Discharge for 9/11 Related Duty May be Eligible  for Combat Related Special Compensation 

The Army Physical Evaluation Board (PEB) at Fort Sam Houston, San Antonio Texas  awarded Combat Related Special Compensation (CRSC) to a New York Army National  Guard Soldier, Major William F. Morrissey, ANG, who was called to active duty to  respond to the September 11, 2001 terror attack on the World Trade Center Towers. In  2017, Major Morrisey, while on active duty, was diagnosed with metastatic cancer  caused by exposure to carcinogens during his service in September 2001.  

CRSC allows a Solider his full retirement pay plus his Veteran’s Administration  Disability Compensation for those conditions determined to be combat related. Without  CRSC a retirement eligible Soldier would have to waive retirement pay up to the amount  of disability pay he elects to receive. The more severe a Soldier’s injuries and the greater  the Soldier’s disability rating, the bigger the difference CRSC can make in the Soldier’s  total monthly pay after retirement. While a non-disabled Solider or very moderately  disabled soldier can usually work after retirement and supplement retirement pay, a very  severely disabled soldier may not have that option. For Soldiers injured in combat,  Congress wanted to recognize their sacrifice by allowing concurrent receipt of retirement  and disability pay for the combat related disability.  

In the context of CRSC, “combat related” means resulting from (1) armed combat, (2)  hazardous duty, (3) simulated war, or (4) an instrumentality of war. While the Army  PEB agreed that the Soldier’s condition was service related, the board did not agree that  the Soldier’s injuries warranted CRSC, because, according to the PEB’s original findings,  the soldier’s injury was not combat related. 

Our office filed a petition with the Army PEB to request reconsideration of their initial  denial of CRSC, and to request a formal PEB if CRSC was not awarded, arguing that the  Soldier’s injuries were the result of combat because terrorist attacks qualify as combat,  the Soldier engaged in hazardous duty when he worked as a first responder at a  demolition site, and that the planes flown by terrorist on September 11, 2001 were used  as instrumentalities of war. The PEB affirmed its original findings that the Soldier’s  injuries did not qualify as armed combat and that the injuries were not caused by an  instrumentality of war. The board, however, granted Major Morrissey’s petition on the  grounds that he was engaged in hazardous duty and therefore qualifies for CRSC. In instructions that set rules for CRSC, the Department of Defense says that hazardous  duty “need not be limited to aerial flight, parachute duty, demolition duty, experimental  stress duty, and diving duty.” 

Sadly, Major Morrissey passed due to his disabilities. Now, the firm is engaged to  represent Major Morrissey’s wife, Jennifer, to obtain benefits Jennifer and the Morrisey  family may be entitled because they should be recognized as a Gold Star family. It is our  privilege to have represented Major Morrisey and his family. We will not give up until  justice is obtained. 

For more information on military appeals related to hazardous duty and legal rights, please contact:

LAW OFFICES OF DAVID P. SHELDON, PLLC

100 M Street SE, Suite 600 

Washington, DC 20003 

(202) 546 9575 (w) 

(202) 546 0135 (f) 

www.militarydefense.com

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