The Law Offices of David P. Sheldon obtains relief before the Coast Guard Board for Correction of Military Records for a former Seaman wrongfully discharged.

PRESS RELEASE

Law Offices of David P. Sheldon PLLC

100 M St SE, Suite 600
Washington, DC 20003
(202) 546 9575
www.militarydefense.com

The Law Offices of David P. Sheldon obtains relief before the Coast Guard Board for Correction of  Military Records for a former Seaman wrongfully discharged. In 2019, a former Seaman was wrongfully  discharged with a General (Under Honorable Conditions) characterization after being administratively separated for alleged misconduct. After a long and decorated history of service, the former Seaman faced false allegations of an alleged Alcohol Incident and Abusive Sexual Contact, which led to an erroneous  CGIS Investigation and eventually forced administrative separation.

In March of 2022, the Law Offices of David P. Sheldon applied on the former Seaman’s behalf to correct this error and injustice before the Coast Guard Board for Correction of Military Records (CGBCMR). On October 25, 2022, the CGBCMR issued an Advisory Opinion, which the firm comprehensively rebutted. In the rebuttal, the Law Offices of David P. Sheldon argued that relief should be granted because the Coast Guard’s failure to abide by its rules and policy of timely reading former Seaman his rights, providing an attorney, informing the accused of the proceeding against him, and informing of the right to appear before an Administrative Separation Board and allowing the accused to exercise that right was “arbitrary and capricious.” The Coast Guard’s failure to abide by its rules and policy also violated the former Seaman’s Fifth Amendment rights, Miranda rights, and Sixth Amendment rights.

On April 2, 2024, the CGBCMR agreed that the former Seaman’s discharge was an injustice requiring correction. The CGBCMR ruled that it was in the interest of justice to upgrade the applicant’s: (1)  characterization of service from General (Under Honorable Conditions) to Honorable; (2) narrative reason for separation from “misconduct” to “secretarial authority”; and (3) reenlistment code from RE-4 to RE-3.

Our client now joins the ranks of the many service members who have had their rights successfully upheld by the Law Offices of David P. Sheldon.

Press Release CGBCMR 2024

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

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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

Navy Upgrades Discharge to Honorable in Board of Record Correction Decision

The Law Offices forwarded the decision from Board for Correction of Naval Records where the board found in the officer’s favor and granted the decision to upgrade the records to reflect Honorable. The decision removed the narrative reason for the discharge from Misconduct to Secretarial Authority, removing the RE-4 enlistment code and substituting an RE-1A.

Sir,

Words can not express how grateful I am. I am so happy I found you and we got this outcome. This news is life altering and I’m so happy. I’m so grateful for all your hard work and effort. This is a huge win for us all. I thank you for your understanding and wisdom and patience. Not everyone was willing to give me a chance to tell my story. Your law firm let me have a voice again. I’m so glad you were in my corner and your knowledge and expertise lead us here. I’m so proud and so grateful! You guys are making a difference every day with the work you do. It’s so honorable and I’m so happy for us all. Thank you, thank you, Thank you!!!

A.T., USMC

Law Offices of David P. Sheldon Wins ABCMR Case to Correct Records

On Monday, January 9, 2023, the Law Offices of David P. Sheldon won an Army Board for Correction of Military Records (“ABCMR”) case to have our client’s records corrected by the Department of the Army and his promotion awarded. The firm was able to obtain the relief less than six months from being retained.

This case involved adverse findings of an Army Regulation 15-6 investigation that were later unfounded by “clear and convincing evidence” and thus did not meet the definition of “reportable information.” Even after this finding and an ABCMR order to correct the records, the Department of the Army failed to correct and grant the requested relief.

The Law Offices of David P. Sheldon worked tirelessly to correct this injustice by requiring the Department of the Army to give our client the remedy he deserved and prevent any further undue hardship. After years of being stonewalled by the Department of the Army, our client finally received his order to correct his records and promotion from Lieutenant Colonel to Colonel.

The Law Offices of David P. Sheldon again thanks our client and the Department of Justice for helping to right this injustice. Specifically, we wish to express appreciation to our client for allowing the Law Offices of David P. Sheldon to advocate on your behalf and help reconcile significant relief in the correction of records, affirmation of promotion and related benefits.

Case Results: USPHS Commander Wins Restoration of Retirement Credits

Another success story for the Law Offices of David P. Sheldon at the Public Health Service Board for Corrections (PHS BFC). The Law Offices of David P. Sheldon represented a Commissioned Corps Commander who was promised retirement credit-in writing-for prior federal civilian service, only to be informed just before retirement that the Commissioned Corps was denying the credit.

As a result of our firm’s efforts, the PHS BFC “concluded that Corps actions constituted an egregious error and an injustice.” Our client will now receive the retirement credit so richly deserved and is now eligible to retire immediately since receiving years of constructive service credit.

 

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Case Results: Complete Relief Army Reserve Captain Wrongfully Denied Retirement

The Law Offices of David P. Sheldon obtains complete relief before the Army Board for Correction of Military Records for Reserve Captain wrongfully denied retirement.

Read the Complaint Here

In 2001 Army Reserve Captain Roland Casillas (ret.) was transferred by the Army to the Retired Reserve based on official orders which declared that he had completed 20 years of service. Though he was uncertain as to whether he met this required, the Army Reserve Personnel Center informed him that he indeed met it, and he was issued an ID card identifying him as a member of the Retired Reserve. Though he was seeking reentry into the ranks at the time, he relied on these orders and instead accepted the promised retirement. This meant that he was due an official Army retirement upon reaching the age of 60, including retired pay and medical care. Yet, when he actually reached the age of 60 in 2018, the Army denied his request, this time claiming that Capt. Casillas had insufficient time in the ranks to qualify for retirement. The Army would even issue orders rescinding their orders from 2001 transferring Capt. Casillas to the Retired Reserve. This was in direct violation of long-established case law which holds that the Army cannot deny a retirement to an individual who it had told was qualified for retirement.

In January of 2020 the Law Offices of David P. Sheldon appealed this denial on behalf of Capt. Casillas in the Court of Federal Claims. This resulted in a voluntary remand to the Army Board for the Correction of Military Records on May 14, 2020. This voluntary remand has now successfully concluded for Capt. Casillas, with him receiving back pay, medical benefits, compensation for the denied medical benefits, and his full retirement for life. Capt. Casillas now joins the ranks of the many service members who have had their rights successfully upheld by the firm.

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Successful Defense for PHS Officer at Board of Corrections

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.

Litigation Case Results

Firm Files Suit in Federal Court on Behalf of Retiree
The firm filed a lawsuit in the United States Court of Federal Claims, requesting the Court order the Army to grant the client a reserve retirement. Many years ago, the Army sent the client orders transferring him to the Retired Reserve based on attaining 20 years of service.

When the client attained the age of 60 and applied for his retirement, the Army told him the orders were in error and he didn’t have enough service time to qualify for a retirement. The Army then sent out orders discharging him in 2018, effective in 2001. They then rescinded the orders transferring him to the retired reserve for 20 years of service and instead cut new orders transferring him to the retired reserve based on receipt of a separation allowance.

In doing so, the Army clearly violated federal law. In fact, the Army must retire the client immediately. We will stay in the fight to ensure that our client’s rights are upheld in federal court. The Court has already ordered the United States to answer the complaint. The name of the case is Casillas v. United States.

In the Superior Court for the District of Columbia, Civil Division, before a trial judge, Mr. Sheldon obtained a complete award of damages with attorney fees and costs awarded for his client in a contested breach of contract claim.

In proceedings before the Merit Systems Protection Board, the Health of Human Services settled with a client of Mr. Sheldon’s, a pediatrician who had been assigned to Kayenta Health Center in Kayenta, AZ. The six-figure settlement included $45,000.00 in legal fees for the client.

The firm represented a former Air Force cadet in an action by the United States to collect monies owed for his Air Force Academy debt. The client was disenrolled in 1998. The United States obtained a judgment for about $125,000. The client discharged this debt in bankruptcy in 2008, but the United States continued collection attempts. Over time, the debt grew to $183,000. After the United States renewed its efforts to garnish the client’s wages, the firm advocated for the client that the debt was discharged in bankruptcy. The United States agreed, moved to dismiss the garnishment, discharged the judgment, and will refund all money erroneously collected. We are happy this matter is finally settled, and the client can move on with his life free from a $183,000 debt.

Mr. Sheldon represented an Air Force General in a federal district court action that alleged negligence on behalf of health care providers at then Walter Reed Army Medical Center. After successfully defeating two motions filed by the Army seeking dismissal of the case, Mr. Sheldon negotiated a six-figure settlement. In addition, the Army apologized to the General.

Mr. Sheldon obtained a landmark decision in the Court of Appeals for the District of Columbia Circuit on behalf of a Vermont National Guard soldier who can now sue for damages because his Privacy Act rights were violated.

Mr. Sheldon settled a Privacy Act case on behalf of an Army National Guard soldier. The soldier received ninety thousand dollars as an award for the violation.

Mr. Sheldon and his team obtained a judgment of $241,801 against the Army for the wrongful discharge of an Army officer, as well as a ruling by the U.S. Court of Federal Claims that the officer was entitled to receive retirement pay and allowances for the remainder of his life.

The Law Offices of David P. Sheldon obtained a $163,500 settlement for a retired enlisted service member after the Air Force had released his records in violation of the Privacy Act.

The team obtained one of the highest-ever settlement awards for damages for a retired Air Force military member, resulting from the wrongful disclosure of medical records in violation of the Privacy Act.

Mr. Sheldon was lead counsel in landmark Privacy Act case, Cummings v. Dep’t of the Navy , 279 F. 3d 1051 (D.C. Cir. 2002), holding that service members can sue for damages under the Privacy Act; suit later was settled favorably for a substantial monetary award.

PHS Case Results

A Commander in the Commissioned Corps, facing elimination from the PHS for misconduct and substandard performance, hired Mr. Sheldon to save his retirement, having served over 17 years. Through Mr. Sheldon’s efforts, the officer was permanently retired from the PHS with a medical retirement and the elimination proceedings were terminated. The officer will go on terminal leave shortly.

Mr. Sheldon successfully represented a Public Health Service (PHS) officer in a formal hearing before the Medical Appeals Board (MAB). Mr. Sheldon appealed the initial decision of the Medical Review Board. Following the formal hearing, the MAB increased the officer’s rating to 70%, which was a significant victory given the facts of the case.

A Captain (0-6) in the Public Health Service received a 60-day sentence to confinement for possession and use of cocaine and for driving a vehicle while drunk/impaired. The officer faced 12 years in jail, a dismissal and loss of all pay and allowances. Most importantly, the officer will retire from the Public Health Service thereby securing him pay and benefits for the remainder of his life.

Mr. Sheldon represented a PHS officer who had been discriminated against. After filing an EEO complaint and proceeding through both the informal and formal process, settlement was reached. The officer was reassigned to a better job, her FLAG on promotion was lifted, a Letter of Reproval was removed from her record, and she received high rankings on her COER for her previous assignment.

As lead counsel for a Public Health Service officer in the matter of Castaneda v. Hui, Mr. Sheldon won a 9-0 decision before the United States Supreme Court. The decision upheld that Public Health service officers are immune from liability under federal law.

Before the Physical Evaluation Board, Mr. Sheldon represented a Public Health Service Officer. After a contested hearing, the officer was retired permanently-the officer was to be separated with severance and now because of Mr. Sheldon’s efforts the officer will receive retired pay and benefits for the remainder of her life.