Military Defense is a Sponsor at the PHS Symposium May 24-26, 2022

The 2022 Symposium will be the 55th annual meeting of the nation’s top Federal, Tribal, State and Local public health providers, administrators and emergency responders/planners.

This event is the only annual meeting dedicated exclusively to the work of U.S. Public Health Service Commissioned Corps officers.  Attendance strengthens the nation’s public health and emergency response capability, while building relationships that will further the mission and objectives of agencies  and provides specific education and training based on specialty. The 2022 Symposium is the 55th annual meeting of the nation’s top Federal, Tribal, State and Local public health providers, administrators and emergency responders/planners.

Event details are located at: https://www.phscof.org/symposium/
Military Defense is a Sponsor at the PHS Symposium in Phoenix May 24-26, 2022.
Please stop by the Military Defense booth and pick up some medical kits, stress balls and luggage wraps.
Congratulations to COA PHS for a successful 2022 conference.

Filing against Navy for Wrongful Death of a Marine Corps Poolee Ordered to Drive While Impaired by Illness

Press Release: The Law Offices of David P. Sheldon File Suit Against the Department of the Navy for the Wrongful Death of a Marine Corps Poolee Ordered to Drive While Impaired by Illness.

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 Against the Department of the Navy for the Wrongful Death of a Marine Corps Poolee Ordered to Drive While Impaired by Illness.

For nearly a decade, Tyler Gergler dreamed of following his parents’ legacy of service in the Marine Corps. When he turned 18, he was finally able to realize that dream, by joining the Delayed Entry Program, in preparation for active-duty service in the Corps. Delayed Entry Program members, or “poolees” enlist in the Marine Corps, but, as the title states, have their entry delayed so that they may participate in a physical training program to prepare them for boot camp. They remain, until entry, with their families, though also under the orders of their recruiters.

A month and a half later, on July 26th, 2019, Tyler was very ill and had been throwing up for nearly 16 hours. Via text, his recruiters ordered him to make the drive from southern Maryland to Colt’s Neck New Jersey for a social event the next day. When he notified his recruiters of how sick he was, they ordered him to drive anyway, and stated that he could be discharged for failing to show. Under this overwhelming pressure, Tyler obeyed his noncommissioned officers’ orders. Less than an hour and a half later, on a beautiful summer afternoon, Tyler died when, for no reason, his car veered off the road and crashed into the highway guard rail. There were no drugs or alcohol in his system, nor were there any conditions on the road that could have caused the accident.

Tyler’s grieving parents, Jason Gergler and Raynu Clark, received not a single benefit from the Marine Corps. No life insurance, no funeral support, and, disgracefully, not even a flag or letter of appreciation for their son’s service. The Corps’ position was that Tyler had died while driving to stay with family that night, and thus had not died in the service of the United States. They were left with nothing but Tyler’s memory.

The Law Offices of David P. Sheldon, alongside local counsel, have filed suit in the District of New Jersey, to correct this. Clark and Gergler v. The Honorable Carlos Del Toro, 2:22-cv-2586, illustrates the egregious and negligent conduct of Tyler’s recruiters, and the way they knowingly ordered a severely ill young Marine to drive.

This suit is not only to help compensate Mr. Gergler and Ms. Clark for the death of their son, but also to effect real change within Marine Corps recruitment practices. Tyler’s parents want to ensure that the Marine Corps will put in place the policy changes needed to ensure that no other parents have to suffer the same tragedy.

 

 

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Opinion: What is the U.N. doing to stop the war and hold Russia responsible?

The Washington Post
Letters to the Editor
Opinion: What is the U.N. doing to stop the war and hold Russia responsible? by David P. Sheldon.

Russia must now be held accountable. It will undoubtedly take time, but so did Nuremberg.

David P. Sheldon, Washington

Article: IRR National Guard Know Your Rights: Delay and Exemption Boards

In the Individual Ready Reserve (IRR) or National Guard marking your time? Activation and deployment orders — know your rights or go at your own peril

 By David P. Sheldon and Shannon James

January 28, 2022

With the potential call up of tens of thousands of those of you who have been marking time in the Individual Ready Reserve (IRR), the National Guard or the Army Reserves for almost a decade now, one needs to act carefully to ensure that you consider your options. You may have established a career, a family, and the responsibilities that come with those things when suddenly you are faced with activation and deployment orders. Your world just blew up. Now what?

Recent events in Eastern Europe and Russia’s stated aggressive stance towards Ukraine portend activation and deployment orders for thousands, if not a 100,000 service members by the end game. Individuals who have served in the National Guard or Reserves may do so believing their commitment will likely remain restricted to weekends or a few weeks a year. While activation and deployment orders are always possible, these soldiers, sailors, Marines, and airmen may not be prepared, especially those who serve in the IRR, to activate and deploy.

Reservists and members of the National Guard should certainly take note and, of course, have a plan in place, especially if they are not in a position to deploy because of work and/or family obligations. But Congress has also allowed for service members to request delay and exemption from orders, through the delay and exemption board. But you must meet the statutory and regulatory bases. And, like everything, timing is critical.

It is important for Reserve and Guard members to understand the time frames in which they may request a delay or deferment in reporting, or an exemption from active duty, since untimely requests may not be processed, and even timely requests can be severely truncated by not understanding the rules and regulations that govern delay and exemption boards. It is also important to have an understanding of the differences between the types of requests and how they may affect a Reserve or Guard member.

The process varies depending on the military department involved, although if denied, generally appeals are available. Having an experienced attorney from the get-go can be critical since members may not be aware of exactly what information they need to provide before a request is considered. Although the process begins with a phone call or a form which may seem simple enough to complete, it is important to know what information a board is looking for in order to provide the strongest application possible. If past conflicts have taught us anything, it is that National Guard members and reservists need to be prepared. Timing is critical. The bottom line is that before you call the number on your orders to the delay and exemption board, let alone submit the form that governs, consult the rules and regulations that apply — or, better yet — call a qualified legal counsel that can assist you in making the very best case for a delay and exemption of your activation and deployment.

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Motion Filed to Rightfully Include USPHS and NOAA at Smithsonian Memorial

Press Release: The Law Offices of David P. Sheldon Files Opposition to the Smithsonian’s Motion to Dismiss in USPHS COA v Bunch 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

Congress created the National Native American Veterans Memorial to be a memorial for all Native veterans. Yet, when it came time to build the memorial, the Smithsonian wrongfully excluded Native veterans of the United States Public Health Service and the National Oceanic and Atmospheric Administration. In May, The Law Offices of David P. Sheldon, representing the Commissioned Officers’ Association of the United States Public Health Service, filed suit to ensure that those two branches were properly included. The continued denigration of the service of USPHS and NOAA veterans has a pervasive impact on their status before private and public institutions. They are frequently denied benefits both due under statute, and granted by private society, due to ignorance as to their status as veterans. The most egregious example of this is the way in which USPHS commissioned officers, deployed by their country to the hottest spots of the COVID pandemic, were frequently denied early vaccination status by military healthcare facilities ignorant of their status as fellow service members.

Yet, it was on those very grounds that the Smithsonian based their motion to dismiss. They argued that Native veterans of the USPHS and NOAA had no entitlement to inclusion on the monument, and that there was no evidence that the denigration of their service and reputation as “real” veterans had any impact on their societal standing. In addition, they also argued that a question of constitutional interpretation was in fact a political question, not fit for the courts to resolve.

Now, The Law Offices of David P. Sheldon have filed their motion to oppose this attempt to dismiss a rightful claim. In their motion, they demonstrate to the Court the massive impact on societal status of the wrongful denigration and spreading of ignorance as to the veteran status of USPHS and NOAA officers. They also remind the Smithsonian, and the Court, of the clear precedence in the D.C. Circuit that constitutional claims are not, contrary to what was alleged by the Smithsonian, political questions barred from consideration. The Law Offices look forward to the successful resolution of this current round of litigation, to the future success of their case, and to the ensuring that Native USPHS and NOAA officers are given the public commemoration they rightfully deserve.

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Voluntary Remand of BCNR Decision Nealy v. Del Toro

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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Filing to Compel the Navy to Produce Wrongfully Withheld Emails

Press Release: Compel the Navy to Produce Wrongfully Withheld Emails

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 Filed Suit in the District Court of the District of Columbia to Compel the Navy to Produce Wrongfully Withheld Emails

In the summer of 2016 Captain Terry Morris was accused of sexual harassment by the wife of the then Under Secretary for Defense (Personnel and Readiness), after failing to obtain her a follow-on position after their office was closed. The Under Secretary of Defense immediately became involved in the case, repeatedly interfering and intervening with both the investigation, and later board of inquiry. This extended to sitting in on the Board of Inquiry, composed of officers whose careers he had immense influence over. Unlawful command influence would be but one of the major problems with the Board, as the Board also consulted with the legal advisor without Captain Morris or his counsel being present. Following the flawed proceedings, the Board of Inquiry recommended separation at the paygrade of O-6, Captain, with an honorable characterization. Captain Morris, who had already requested his retirement, and was facing aggressive prostrate cancer, decided not to challenge his separation. Naval District Washington and the Naval Personnel Command both concurred with the paygrade and characterization of separation. Yet the Under Secretary of Defense’s intervention was not over and the Secretary of the Navy went against the recommendations, added an “unacceptable conduct” reason for separation code, and reduced Captain Morris’ paygrade to O-5, commander.

Captain Morris now seeks to undo the injustice was inflicted on him, but he cannot do so without the full evidence base of what happened behind the scenes of his investigation, Board of Inquiry, and separation. In June of 2020 he filed a FOIA application for production of all the documents, including emails, between the involved personnel and offices concerning him and the processes against him. The Department of the Navy responded in two blocks, dated November 19, 2020, and March 25, 2021. Yet, stunningly, no emails were produced, despite them being requested. That no emails were to have ensued in the background of his investigation, especially with the proof on the record of the Under Secretary’s involvement in this matter, is patently ridiculous.

The Law Offices of David P. Sheldon have thus filed a complaint in the District Court of the District of Columbia to force the Navy to produce these wrongfully withheld emails. Once this has occurred, Captain Morris will finally be able to shine a proper light on the behind the scenes machinations which resulted in his wrongful investigation, Board of Inquiry, and reduction of paygrade on separation.

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

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

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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