Attorney Dylan Thayer Argues Military Promotion Case Before the D.C. Circuit: Mitchell v. Phelan

SCOTUS on VA Appeals

Update: The live recording Oral Argument Mitchell v Phelan.
Friday, November 21, 2025 9:30 A.M.
Judges Pillard, Walker, Edwards Case 1: 25-5013 Ernest Mitchell v. John Phelan

The Law Offices of David P. Sheldon, PLLC, announced that Attorney Dylan Thayer will present oral argument before the U.S. Court of Appeals for the District of Columbia Circuit on Friday, November 21, 2025, in the case Ernest F. Mitchell v. John Phelan, Secretary of the Navy (Case No. 25-5013).

At issue in this appeal is whether the Navy violated federal law when it delayed a service member’s promotion beyond the statutory 18-month limit set by 10 U.S.C. § 624(d)(5)—and whether that delay automatically entitled Lieutenant Mitchell to promotion “by operation of law.” The case also challenges the Navy’s decision to issue a “detachment for cause”, alleging it was based on arbitrary findings inconsistent with military regulations and fairness standards.

Mitchell, a decorated officer with over a decade of service, was selected and Senate-confirmed for promotion to Lieutenant Commander before the Navy delayed his advancement following a minor disciplinary action. Despite a Board of Inquiry’s recommendation that he remain in service, his promotion was later withdrawn—prompting a challenge before the Board for Correction of Naval Records (BCNR), the U.S. District Court for the District of Columbia, and now the D.C. Circuit Court of Appeals.

Attorney Thayer, who will argue on behalf of LT Mitchell, emphasized the broader implications of the appeal:

“This case isn’t only about one officer’s career,” Thayer said. “It’s about ensuring that the military follows its own laws and deadlines and that service members are not punished twice for the same incident. Congress set an 18-month limit on promotion delays for a reason: to guarantee accountability and prevent arbitrary career destruction.”  “It’s also about the plain meaning of the statute.”

The appellant’s brief argues that once the Navy exceeded the statutory delay period, Mitchell was automatically promoted by operation of law, and that the Board for Correction of Naval Records acted arbitrarily and capriciously when it failed to correct this injustice.

The appeal also challenges the Navy’s expansive interpretation of “substandard performance” under MILPERSMAN 1611-020, arguing that no definition of “gross negligence” or “complete disregard of duty” fits the record of an officer consistently rated “Promotable” or “Above Standards” in multiple fitness reports.

Oral argument is scheduled for 9:30 A.M. on November 21, 2025, before a three-judge panel at the E. Barrett Prettyman U.S. Courthouse in Washington, D.C. The outcome could set an important precedent on promotion timelines, executive appointment authority, and due process protections for officers across the armed services.

 

About the Law Offices of David P. Sheldon, PLLC

The Law Offices of David P. Sheldon, PLLC, based in Washington, D.C., represents military service members, veterans, and federal employees worldwide in courts-martial, boards of inquiry, BCNR and BCMR appeals, and federal court litigation. The firm is nationally recognized for its advocacy in military justice, administrative appeals, and constitutional due process.

Disclaimer

This release is for informational purposes only and does not constitute legal advice. Past performance does not guarantee future results. Viewing or responding to this release does not create an attorney-client relationship.

Army Physician Decision by the Physical Evaluation Board, Opening Path Toward Recovery and Renewal

Army Doctor Gets Results at PEB

The Law Offices of David P. Sheldon, PLLC is pleased to share that a client represented before a U.S. Army Physical Evaluation Board (PEB) has formally accepted the board’s findings, completing a significant step in their journey toward recovery and transition.  The case is unique as DOD standards are much more stringent regarding Fitness for Duty when applied to physicians serving on active duty.

After months of evaluation, documentation, and review under the Department of Defense’s medical disability process, the client’s board findings were finalized, and the service member signed the formal DA Form 199, concluding the board’s deliberations. The acceptance signifies not only closure within the administrative process but also a personal milestone — a moment to focus on healing and moving forward.

“This stage often represents both an end and a beginning,” said Attorney David P. Sheldon, founder of the firm. “For many of our clients, the Medical Board/Physical Evaluation Board process can be overwhelming and deeply personal. Finalizing the findings allows them to reclaim stability and begin the next chapter with clarity and dignity.”

The MEB and subsequent Physical Evaluation Board (PEB) processes are designed to assess a service member’s fitness for continued military service and entitlement to disability benefits. For many, these proceedings determine the trajectory of their future — including retirement, benefits, and access to medical care.

In this case, the client’s acceptance of the board’s recommendations represents a successful navigation of a complex administrative system that ensures their medical conditions are recognized and appropriately rated. The outcome underscores the importance of due process, advocacy, and professional representation for service members facing health-related career decisions.

The decision came on the heels of the Informal Physical Evaluation Board finding the soldier Fit for Duty, which was appealed.   At a formal hearing, presented by Mr. Sheldon, the Board reversed that finding based upon the testimony of forensic psychologist, another doctor and the Soldier as well.  In closing, Sheldon did not mince words: “I understand the Army wants a doctor, they paid for a doctor, but through no fault of his own is this soldier fit to be a doctor.”

The Law Offices of David P. Sheldon, PLLC remains committed to supporting service members through every stage of the disability and separation process — from initial medical evaluations to appeals and correction of military records. The firm celebrates this client’s perseverance and courage in reaching this pivotal step toward long-term recovery and personal stability.

About the Law Offices of David P. Sheldon, PLLC

The Law Offices of David P. Sheldon, PLLC is a Washington, D.C.–based firm dedicated to defending the rights of service members, veterans, and federal employees worldwide. With decades of experience in military and federal administrative law, the firm represents clients before the Boards for Correction, Medical and Physical Evaluation Boards, the MSPB, and federal courts, ensuring that those who serve are treated with fairness, honor, and respect.

Disclaimer: The information provided in this post is for general informational purposes only and should not be construed as legal advice or as forming an attorney–client relationship. The case details have been limited to preserve the privacy of the client and comply with applicable confidentiality regulations. Each service member’s situation is unique, and outcomes may vary based on individual facts, evidence, and applicable law. Readers should consult qualified counsel before relying on or applying the information contained herein.

 

Veteran Military Attorney Karen Hecker Rejoins the Law Offices of David P. Sheldon, PLLC

Karen Hecker joins Law Offices of David P Sheldon, PLLC

Veteran Military Attorney Karen Hecker Rejoins the Law Offices of David P. Sheldon, PLLC

Washington, D.C. – The Law Offices of David P. Sheldon, PLLC proudly announces the return of Karen Hecker, a distinguished military and federal litigation attorney, who brings more than four decades of combined legal experience in military justice, appellate defense, and federal agency counsel service.

Before retiring from federal service in 2025, Ms. Hecker served for 21 years as an Associate General Counsel with the Department of Defense Office of General Counsel, where she managed complex, high-impact litigation on behalf of the Department and its senior leadership. Her work spanned international law, personnel and health policy, fiscal matters, and military justice under the Uniform Code of Military Justice.

Karen’s government career followed 24 years as an Air Force Judge Advocate (JAG), culminating in her retirement as a Colonel in 2017 after service on active duty and in the Reserves. Her military tenure included three years as a trial defense counsel, which also involved representing cadets as Military Cadet Counsel at the United States Air Force Academy, followed by eight years as an appellate defense counsel, representing service members before both the Air Force Court of Criminal Appeals and the Court of Appeals for the Armed Forces.

She later served as Deputy Staff Judge Advocate and Staff Judge Advocate at two operational bases, and ultimately as a judge on the Air Force Court of Criminal Appeals, where she presided over military appellate cases. Before her retirement, Karen also served as agency counsel for the Air Force Board for Correction of Military Records and during Officer Grade Determination reviews.

Returning to the firm where she previously practiced from 2001 to 2004, Karen joins as a Senior Litigation Attorney, bringing exceptional insight and experience to the firm’s representation of military and federal employees across all branches of service.

“Karen’s return to our firm is a tremendous asset for our clients,” said David P. Sheldon, founder and principal attorney. “Her depth of experience, leadership, and integrity exemplify our mission—to deliver justice and restore honor to those who serve.”

In her personal time, Karen enjoys boating on the Chesapeake Bay and volunteering with a local animal rescue organization.

Army Family Files Federal Lawsuit Over Privacy Act Violations After Unlawful Release of Records

Privacy Act

A married Army couple has filed suit in the U.S. District Court for the District of Columbia, alleging the Department of the Army unlawfully released sensitive personal information protected under federal law. At the heart of the case is a military police report that contained unredacted details about the family, including Social Security numbers, Department of Defense identification numbers, dates of birth, and the names of their minor children.

The couple contends that the release of this information, without their knowledge or consent, directly violated the Privacy Act of 1974, 5 U.S.C. § 552a, which prohibits government agencies from disclosing personal records contained within a “system of records” absent a written request or authorization. The law makes clear that any intentional or willful release of protected data that causes harm opens the door to civil liability.

Here, the unredacted report was transmitted to a third party during a private custody dispute. Not only was the disclosure made without any lawful basis, but the Army itself later conceded through its Installation Management Command that the report had been released in violation of federal law. The complaint alleges the release was willful and intentional, even occurring after the Army employee responsible received a system-generated warning about disseminating personally protected information.

Legal precedent strengthens the family’s claim. In Doe v. U.S. Department of Justice and Chambers v. U.S. Department of the Interior, the D.C. Circuit confirmed that unlawful disclosures causing adverse effects, such as financial costs or emotional distress, are actionable. The complaint cites these principles in establishing all four required elements of a Privacy Act damages claim:

  1. The police report was a record within a system of records.
  2. The Army improperly disclosed the record.
  3. The disclosure was willful and intentional.
  4. The plaintiffs suffered adverse effects, including more than $20,000 in legal fees and lasting emotional harm.

“This is not just a technical violation,” said their counsel, Dylan Thayer of the Law Offices of David P. Sheldon, PLLC. “When the Army released a document it was explicitly forbidden to share, it violated a fundamental promise of privacy and accountability. The consequences for this family were immediate and severe.”

The lawsuit seeks damages, attorneys’ fees, and other relief under the Privacy Act, sending a clear message: military families, like all Americans, are entitled to the full protections Congress enacted to keep their personal information secure.

Disclaimer

This release is for informational purposes only and does not constitute legal advice. Viewing or sharing this content does not create an attorney–client relationship.

About the Law Offices of David P. Sheldon, PLLC

The Law Offices of David P. Sheldon, PLLC is a premier boutique law firm based in Washington, D.C., representing service members, veterans, federal employees, and their families nationwide. With decades of combined experience, the firm advocates for justice in military, administrative, and federal courts.

Federal Medical Malpractice Settlement Reached After Administrative Denials, Federal Filings, and Painstaking Advocacy

Army Pilot Wins FTCA Medical Malpractice

Federal Medical Malpractice Settlement—Fox Army Health Center, Redstone Arsenal, Alabama

A Life Forever Changed: Settlement Brings Justice, But Not the Years Lost

After years of relentless legal battles, a long-awaited settlement has been reached in a medical malpractice case brought under the Federal Tort Claims Act (FTCA) against the United Army. Represented by attorney Dylan Thayer of the Law Offices of David P. Sheldon, PLLC, the client, a retired service member and federal civilian employee, faced a devastating medical injustice that will forever shorten his life.

For years, the client entrusted military medical providers with his annual flight physicals, a critical requirement for his career. These examinations were supposed to safeguard not just his professional readiness, but his health. Yet, despite his family history of prostate cancer and his repeated disclosures of that risk, military medical providers at Fox Army Health Center, Redstone Arsenal, Alabama failed to perform the basic and recommended PSA testing for three consecutive years.

The consequence was catastrophic. By the time the cancer was discovered, it was Stage 4 and terminal, with metastasis spread to the bones and spine. His prognosis, once filled with promise and years of service ahead, was now tragically shortened.

The Veteran pursued justice not for financial gain, but for accountability and recognition of the harm done. His fight exposed systemic failures in military healthcare, failures that left him without the chance for earlier treatment that could have extended his life.

“This is a case about accountability and dignity,” said Attorney Dylan Thayer. “Our client trusted the system designed to protect him, and the system failed him. While the settlement offers some measure of justice, it comes at a heartbreaking cos, years of life lost that no legal resolution can restore.”

The settlement marks the conclusion of a legal journey that spanned years of administrative denials, federal filings, and painstaking advocacy. It is a victory that carries both relief and sorrow: relief that justice has been recognized, and sorrow that justice came too late to change the ultimate outcome.

This case highlights a critical reminder for military and civilian healthcare systems alike: adherence to medical standards is not optional. The costs of negligence are not measured in dollars alone, but in human lives and the time unjustly taken from them.

About the Law Offices of David P. Sheldon, PLLC:

The Law Offices of David P. Sheldon, PLLC, based in Washington, D.C., is a national law firm dedicated to representing service members, veterans, and federal employees in matters involving military justice, administrative law, federal employment, and medical malpractice. The firm has built a reputation for delivering results in complex cases where the stakes are life, liberty, and livelihood.

Disclaimer:

This press release is for informational purposes only and does not constitute legal advice. Reading this release does not create an attorney-client relationship.

 

Court of Appeals for the Armed Forces Overturns Airman’s Conviction; Restores Honor and Career

Montana Air

The Law Offices of David P. Sheldon, PLLC announced today a significant victory before the United States Court of Appeals for the Armed Forces (CAAF), which unanimously reversed the wrongful conviction of an Airman wrongfully convicted of cocaine use.  The unanimous decision found that prosecutors had wrongfully failed to disclose exculpatory evidence under Brady v. Maryland.

This decision likely secures more than three years of back pay and allowances for the Airman and, most importantly, removes his criminal conviction, ensuring he will be honorably discharged.

From Injustice to Vindication

The young Airman faced a devastating court-martial conviction in 2021 at Little Rock Air Force Base after the government withheld and destroyed critical evidence that could have exonerated him. While one of his co-accused was acquitted and another not even charged, the Airman was left with a court martial conviction, “bad paper” discharge, denied appellate review, and forced to rebuild his life working at a Home Depot.

After his initial Article 69 petition was denied, the Law Offices of David P. Sheldon, PLLC took the case pro bono. When the Air Force Court of Criminal Appeals affirmed the conviction, Senior Military Defense Attorney Annie Morgan, argued the appeal before the CAAF in Spring of 2025.

This morning, the CAAF issued its unanimous decision, ruling that the lower court erred in dismissing withheld exculpatory evidence, a clear violation of Brady v. Maryland. The Court found the government’s destruction of investigative files and failure to disclose evidence fundamentally undermined the fairness of the trial.

A Voice for All Service Members

“This case reaffirms that every service member, no matter their rank, deserves a fair trial,” said Annie Morgan, Senior Military Defense Attorney at the Law Offices of David P. Sheldon. “Our client stood alone for years, but today the Court has restored his honor and ensured that justice prevails.”

Case Impact

The Court set aside both the findings and the sentence, underscoring that suppressed evidence of potential innocent ingestion and investigative misconduct should have been disclosed.

This ruling strengthens due-process protections across the armed forces and sends a clear message that the government must honor its constitutional discovery obligations.

About the Law Offices of David P. Sheldon, PLLC

The Law Offices of David P. Sheldon, PLLC, based in Washington, D.C., is a nationally recognized firm representing military service members, federal employees, and veterans. With a focus on courts-martial defense, medical retirement boards, and appeals before military and federal courts, the firm is committed to safeguarding the rights, careers, and honor of those who serve.

Disclaimer

This release is for informational purposes only and does not constitute legal advice. Past results do not guarantee a similar outcome. No attorney-client relationship is created by this announcement.

 

Army Officer Files for Correction of Military Records After Career-Ending Injustice

Army Commander Files for Correction of Records

Attorney Dylan Thayer of The Law Offices of David P. Sheldon, PLLC filed a petition on behalf of a former U.S. Army officer, seeking long-overdue correction of her military records. The filing alleges that administrative delays, wrongful documentation, and unjust proceedings led directly to the premature end of the officer’s Army career.

The case centers on the Army’s mishandling of a General Officer Memorandum of Reprimand (GOMOR) issued in 2017. Although the officer accepted responsibility and demonstrated years of exemplary service afterward, including letters of support from commanding officers and strong performance reviews, her record was never corrected in time to prevent an unfair separation. Even the issuing general later confirmed that the reprimand had “served its intended purpose” and should have been removed.

Despite this, bureaucratic delays allowed the reprimand to influence promotion and retention boards, effectively ending the officer’s military service in 2021. The filing argues that the Army Board for Correction of Military Records must now grant relief, including reinstatement, retroactive promotion consideration, and the removal of the unjust reprimand.

“This case is about fairness, justice, and the Army’s duty to uphold its own regulations,” said Dylan Thayer, counsel for the officer. “Our client gave years of honorable service and demonstrated rehabilitation, yet her career was cut short by administrative errors that the Army itself acknowledged were unjust.”

The petition also details the severe toll the separation has taken on the officer’s mental health, including treatment for post-traumatic stress disorder, anxiety, and depression. Advocates argue that correcting her record is not only required by law but essential to restoring the integrity of the Army’s personnel system.

About the Law Offices of David P. Sheldon, PLLC

Based in Washington, D.C., the Law Offices of David P. Sheldon, PLLC represents service members, veterans, and federal employees in matters involving military justice, medical boards, security clearance actions, and corrections of military records. With decades of experience, the firm is committed to protecting the rights and careers of those who serve.

Disclaimer

This press release is for informational purposes only and does not constitute legal advice. Reading this release does not create an attorney-client relationship with the Law Offices of David P. Sheldon, PLLC.

U.S. Air Force Member Granted Honorable Discharge, Opens Path to Medical Evaluation Board Review

A service member represented by the Law Offices of David P. Sheldon, PLLC has been granted an Honorable Discharge from the United States Air Force, following the approval of a conditional waiver by Major General Daniel A. DeVoe, Commander of the Air Force District of Washington (AFDW). This decision closes an administrative separation proceeding and allows the member to move forward with a Medical Evaluation Board (MEB) process to address service-related health concerns.

Originally initiated due to allegations of misconduct, the administrative discharge proceedings temporarily halted the member’s medical review process. However, with the recent decision to issue an Honorable Discharge, the member is now eligible to pursue further review before the Air Force Board for Correction of Military Records (AFBCMR) in an effort to reinstate the MEB.

“This is a significant and affirming step,” said Annie Morgan, Senior Military Attorney at the Law Offices of David P. Sheldon. “It not only honors our client’s service but also acknowledges the importance of ensuring access to the medical systems designed to support service members affected by trauma. We are now in a position to re-engage with the MEB process so that our client can receive a full and fair evaluation of their health conditions.”

The member’s appeal to preserve the MEB was initially denied after a military separation board determined that the member’s conduct was not linked to any underlying service-connected disability. That decision is now subject to further review. The legal team argues that the misconduct was closely tied to undiagnosed or untreated PTSD and related behaviors stemming from operational stress.

The Law Offices of David P. Sheldon is now preparing the client’s petition to the AFBCMR, advocating for the reinstatement of MEB proceedings and any related benefits the member may be entitled to under military disability retirement rules.

About the Law Offices of David P. Sheldon, PLLC
Based in Washington, D.C., the Law Offices of David P. Sheldon, PLLC provides aggressive and compassionate legal representation to service members across all branches of the military. The firm is nationally recognized for its expertise in military justice, medical retirements, security clearance defense, and discharge upgrades.

Legal Disclaimer: The content of this press release is provided for informational purposes only and does not constitute legal advice. Past results do not guarantee future outcomes. Individuals seeking legal representation should consult with a qualified attorney.