Military Appeals Archives

Army Appeal Challenges Conviction, Asking Whether Government-Created Evidence Proved Criminal Intent Beyond a Reasonable Doubt

Posted on September 15, 2026September 17, 2026 by Becky Haugen

Law Offices of David P. Sheldon, PLLC asks Army Court of Criminal Appeals to review legal and factual sufficiency and whether the government disproved entrapment beyond a reasonable doubt

The Law Offices of David P. Sheldon, PLLC filed an appellate brief on September 15, 2026, on behalf of an Army officer asking the United States Army Court of Criminal Appeals to set aside a court-martial conviction and sentence arising from an undercover internet investigation.

The servicemember’s identity is being withheld from this release.

The filed brief presents two principal assignments of error: whether the evidence was legally and factually sufficient to sustain the conviction, and whether the government failed to disprove the affirmative defense of entrapment beyond a reasonable doubt. The appellant separately asks the court, pursuant to United States v. Grostefon, to consider issues involving court-martial jurisdiction and the loss of originally detailed military defense counsel.

At the center of the appeal is a basic but consequential question in criminal law: What did the accused actually know and intend when the alleged offense occurred?

An Investigation That Began With an Adult Profile

According to the appellate brief, the case began with an undercover operation on the anonymous social-media application Whisper.

Law enforcement created a fictitious profile that did not identify its user as a child. Instead, the profile represented the user as a woman older than 45. The officer later communicated with the fictitious persona through text messages and telephone conversations, all controlled by law enforcement.

The filed brief emphasizes that the initial exchanges were ordinary conversations and that law-enforcement testimony established that the appellant did not introduce sexual topics during the text-message exchanges. The brief further argues that, despite operational guidance calling for the fictitious persona’s age to be disclosed “early and often,” the persona never identified herself as 14 during the extensive written exchanges.

That sequence matters because an attempt offense requires more than conduct alone. The government must prove the specific criminal intent required by the charged offense.

The defense contends that this proof was missing.

The Age Disclosure Came After the Meeting Was Already Underway

The appellate brief says law enforcement provided the meeting location hours before the disputed age disclosure occurred.

According to the filing, the appellant was already driving toward the meeting location when an undercover officer, using her normal adult voice, participated in a telephone conversation with him. The brief states that this was the first time the appellant made sexual comments.

It also cites testimony from the undercover officer that she was unsure whether the appellant actually understood that the fictitious persona was 14 at the time those comments were made.

The brief further states that the undercover officer gave the appellant an ultimatum: make a sexual statement or the call would end. The purported disclosure that the fictitious persona was 14 came near the end of that call, after the appellant had already been traveling toward the meeting location for approximately two hours.

The defense argues that the circumstances of the call are critical. The filing describes background noise and interruptions, and the appellant testified that he did not hear the statement identifying the fictitious person as 14.

For the defense, this is not a minor factual disagreement. It goes directly to whether the government proved the required state of mind beyond a reasonable doubt.

The Military Judge’s Own Observation Raises an Important Question

The final brief adds a particularly significant point from the trial record.

After the appellant reached the location selected by law enforcement, he was immediately arrested. The appellate filing quotes the military judge as observing that the appellant was arrested and charged before he had the “best chance and opportunity to conclusively determine the identity and age of the alleged victim.”

Investigators then seized and searched three of the appellant’s phones for evidence that might demonstrate a predisposition to commit the alleged offense.

According to the filed brief, no evidence from those devices was admitted showing child sexual abuse material, child pornography, suspicious search histories, or a prior sexual interest in minors.

That evidence becomes especially important because the second principal issue on appeal is entrapment.

The Appeal Challenges Whether the Government Disproved Entrapment

Entrapment does not simply ask whether an accused ultimately engaged in certain conduct. It asks whether the criminal design originated with the government and whether the accused was already predisposed to commit the offense before government agents became involved.

The filed brief argues that law enforcement created the fictitious persona, controlled the communications, introduced the sexual subject matter, selected the meeting location, determined when the purported age would be disclosed, and directed the encounter from beginning to end.

The defense therefore argues that the government was required to establish beyond a reasonable doubt that the appellant possessed the necessary predisposition before those government actions began.

The brief contends that the government failed to do so.

It points out that searches of the appellant’s electronic media produced no evidence introduced at trial establishing that he had previously sought sexual contact with minors, communicated sexually with minors online, possessed child sexual abuse material, expressed a sexual interest in children, or engaged in similar prior misconduct.

The defense argues that conduct occurring only after repeated government interaction cannot, by itself, establish that the criminal intent existed before the government’s involvement.

The Appeal Is About More Than Whether a Meeting Occurred

The defense does not dispute that the appellant ultimately traveled to meet the person he believed he had been communicating with.

The legal question is different.

The government was required to prove that the appellant possessed the particular criminal intent alleged in the charge. The appellate brief argues that traveling to meet someone is not enough to establish that the appellant intended sexual activity with someone he believed to be 14.

The filing argues that the government’s theory required one inference to be placed on top of another: that the appellant heard the age disclosure during a noisy call while driving; that he understood it; that he immediately abandoned the understanding created by an adult profile and an adult female voice; and that his continued travel thereafter demonstrated the specific intent required for conviction.

The defense maintains that due process requires more than a chain of speculative inferences to establish guilt beyond a reasonable doubt.

The brief therefore asks the Army Court of Criminal Appeals to conduct its own review of both legal and factual sufficiency under Article 66 of the Uniform Code of Military Justice.

Why Factual Sufficiency Review Matters

Military appellate review provides protections that are especially important when a conviction turns on disputed facts and disputed inferences about intent.

The filed brief relies on Article 66, UCMJ, which permits a Court of Criminal Appeals, under the applicable statutory standard, to weigh evidence and consider controverted questions of fact after an appellant makes the required showing of a deficiency in proof.

Here, the defense asks the appellate judges to look beyond the fact that an arrest and conviction occurred and examine what the evidence actually established about the officer’s understanding and intent.

That review carries substantial consequences.

The military judge sentenced the officer to dismissal from the Army and 36 months of confinement. The officer had pleaded not guilty to the offense for which he was convicted, and the military judge separately found him not guilty of another specification alleging attempted sexual abuse of a child.

For a military officer, a dismissal can reach well beyond the courtroom. A criminal conviction and punitive separation can affect a career built over many years of service, professional standing, financial security, military benefits, family stability and reputation.

That is why meaningful appellate review matters.

Appellant Separately Preserves Jurisdiction and Counsel-of-Choice Issues

In addition to the two principal assignments of error, the appellant personally asks the Army Court of Criminal Appeals to consider two additional matters pursuant to United States v. Grostefon.

The first questions whether the military established personal jurisdiction under Article 2 of the UCMJ. The jurisdictional issue was litigated at trial, and the appellant asks the appellate court to independently review the military judge’s ruling and the requirements of Army Regulation 27-10.

The second concerns the appellant’s military defense counsel.

According to the filing, one of the appellant’s originally detailed military defense counsel was released from the case while the proceedings were underway. The appellant personally maintains that the loss of that counsel was detrimental to preparation and presentation of the defense and asks the court to determine whether the change violated his statutory or constitutional rights.

These issues are separately preserved for appellate review and are distinct from the two principal assignments of error presented in the filed brief.

The Government Still Bears the Burden

Undercover investigations are legitimate law-enforcement tools. But their use does not reduce the government’s burden of proof.

When government agents create the identity, control the conversation, determine when critical information is provided, introduce sexual content and direct the eventual meeting, careful examination of knowledge, intent and predisposition becomes particularly important.

A criminal conviction cannot rest simply on what events looked like after an arrest. The evidence must establish the required elements of the charged offense under the applicable burden of proof.

That principle is at the heart of this appeal.

The Law Offices of David P. Sheldon, PLLC asks the Army Court of Criminal Appeals to review the evidence, the conduct of the undercover investigation and the government’s proof of intent and predisposition.

The relief requested is significant. The appellant asks the court to set aside the findings of guilt, dismiss the charge with prejudice and set aside the sentence.

The filing was electronically submitted to the Army Court and Government Appellate Division on September 15, 2026.

The appeal remains pending. The arguments described in this release are positions advanced on behalf of the appellant and have not yet been resolved by the Army Court of Criminal Appeals.

About the Law Offices of David P. Sheldon, PLLC

The Law Offices of David P. Sheldon, PLLC, located in Washington, D.C., represents members of the United States Armed Forces, officers, veterans and federal employees in complex military and federal matters.

The firm’s military practice includes courts-martial, military criminal appeals, administrative separation matters, correction of military records, disability and medical proceedings, security-clearance matters, adverse personnel actions and federal litigation affecting the careers, reputations and earned benefits of those who serve.

The firm represents clients throughout the United States and worldwide in matters arising under the Uniform Code of Military Justice, military administrative law and federal law.

Law Offices of David P. Sheldon, PLLC
100 M Street SE, Suite 600
Washington, DC 20003
MilitaryDefense.com

Disclaimer

This press release is provided for informational and educational purposes only. It does not constitute legal advice and does not create an attorney-client relationship with the reader.

The factual descriptions and legal positions discussed in this release are drawn from the appellant’s filed brief and the trial record as characterized in that filing. Arguments submitted on appeal are advocacy positions presented for judicial review and should not be understood as findings by the Army Court of Criminal Appeals.

Every military justice matter depends upon its individual facts, procedural history and applicable law. Prior results do not guarantee or predict the outcome of any other matter.

Supreme Court Petition Challenges Limits of Executive Authority Over Military Promotions

Posted on June 26, 2026June 26, 2026 by Becky Haugen

Former Navy Officer Seeks Supreme Court Review of D.C. Circuit Decision Interpreting 10 U.S.C. § 624(d)(5)

The Law Offices of David P. Sheldon, PLLC filed a Petition for Writ of Certiorari asking the Supreme Court of the United States to review a significant military personnel law case involving the interpretation of federal promotion statutes, Congressional authority over the armed forces, and the constitutional balance between the legislative and executive branches.

The petition was filed on behalf of Lieutenant Ernest F. Mitchell, U.S. Navy, who challenges decisions by the Board for Correction of Naval Records, the U.S. District Court for the District of Columbia, and the U.S. Court of Appeals for the D.C. Circuit concerning the Navy’s handling of his promotion to Lieutenant Commander. The petition presents a single constitutional question: whether the courts improperly nullified Congress’s express statutory limitation on military promotion delays contained in 10 U.S.C. § 624(d)(5).

The Supreme Court filing follows the D.C. Circuit’s March 13, 2026 decision affirming the lower court’s ruling that Lieutenant Mitchell was not promoted “by operation of law” despite remaining on the promotion list beyond the statutory 18-month limitation established by Congress.

A Question Affecting Military Officers Across the Armed Forces

At the heart of the petition is a straightforward question with potentially broad implications for military personnel:

Congress enacted a statute providing that an officer’s appointment “may not be delayed” beyond eighteen months after the date the officer otherwise would have been appointed. Lieutenant Mitchell argues that when the government exceeds that statutory deadline, Congress intended the promotion process to conclude and the appointment to take effect. The petition contends that the D.C. Circuit’s interpretation effectively reads the statutory deadline out of existence and leaves military officers without a meaningful remedy when the government violates the law.

The petition further argues that the case presents an important separation-of-powers issue involving Congress’s constitutional authority to “make Rules for the Government and Regulation of the land and naval Forces.”

Representation

Lieutenant Mitchell continues to be represented by David P. Sheldon, founder of the Law Offices of David P. Sheldon, PLLC.

What the Legal Team Expects to Advance

The Supreme Court petition seeks more than relief for a single officer. The case presents an opportunity for the Court to clarify:

Whether Congress may impose enforceable deadlines on military promotion delays;
Whether courts may effectively nullify statutory protections by finding no remedy for an acknowledged violation;
The proper balance between Congressional authority over military personnel systems and executive appointment powers;
The rights of service members who have been nominated, Senate-confirmed, and then subjected to administrative delays beyond limits established by federal law.

The case presents a recurring question affecting thousands of military officers whose careers, promotions, retirement calculations, and future opportunities may depend upon the faithful application of federal promotion statutes. The petition argues that only the Supreme Court can provide uniform guidance on the meaning and enforceability of 10 U.S.C. § 624(d)(5).

Statement from the Legal Team

“This petition asks whether statutory protections enacted by Congress have real force or merely symbolic value,” said David P. Sheldon. “When Congress establishes a deadline governing military promotions, service members deserve to know whether that deadline means what it says. We believe this case presents an important constitutional question worthy of Supreme Court review.”

About the Law Offices of David P. Sheldon, PLLC

The Law Offices of David P. Sheldon, PLLC represents military service members, veterans, federal employees, and uniformed service professionals worldwide in courts-martial, military administrative proceedings, correction board matters, security clearance cases, federal employment disputes, appellate litigation, and federal court actions.

For more information, visit www.militarydefense.com.

Disclaimer

The materials contained in this release are provided for informational purposes only and do not constitute legal advice. Filing a petition for certiorari does not guarantee Supreme Court review. Every case is unique, and prior results do not guarantee future outcomes. Reading this release does not create an attorney-client relationship.

Speaking Truth to Command: Why Expanding Military Whistleblower Protections Is About More Than Reporting Misconduct

Posted on June 24, 2026 by Becky Haugen

When a service member raises concerns about fraud, abuse, unsafe conditions, discrimination, or unlawful conduct, the expectation is simple: the military should investigate the problem, not punish the person who reported it. Yet for many men and women in uniform, experience has suggested otherwise. Careers have stalled, promotions have disappeared, leadership opportunities have vanished, and administrative actions have followed disclosures that were intended to protect the mission rather than undermine it.

The Senate’s proposed expansion of military whistleblower protections in this year’s National Defense Authorization Act (NDAA) is an acknowledgment that existing safeguards have not always achieved their intended purpose. While the legislation is still moving through the congressional process, it reflects a growing recognition that protecting those who report wrongdoing is essential to maintaining both military readiness and public confidence in the armed forces.

At its core, military whistleblower protection is governed by 10 U.S.C. § 1034, commonly known as the Military Whistleblower Protection Act. Unlike civilian federal employees, who rely on the federal Whistleblower Protection Act and an established administrative process, military members operate within a unique legal framework that balances constitutional authority, military discipline, and the chain of command. That balance has always been delicate.

The law allows service members to report violations of law, gross mismanagement, abuse of authority, substantial dangers to public health or safety, and other misconduct to members of Congress, Inspectors General, law enforcement agencies, or designated officials within the Department of Defense. In theory, retaliation for making those protected communications is prohibited.

In practice, retaliation is rarely obvious.

Very few commanders would openly admit that an officer or enlisted member is receiving a poor evaluation because they filed an Inspector General complaint or contacted Congress. Instead, retaliation often appears in far more subtle ways. A once-promising officer suddenly receives average performance reports. A senior noncommissioned officer is quietly removed from a leadership position. Promotion recommendations become less enthusiastic. Security clearance concerns emerge without warning. Administrative investigations begin to multiply. Individually, each action may appear legitimate. Collectively, they can permanently alter the trajectory of a military career.

That reality has long presented one of the greatest legal challenges in military whistleblower cases. The issue is seldom whether retaliation occurred in the ordinary sense of the word; rather, it is whether the service member can prove that an otherwise lawful personnel decision was actually motivated by a protected disclosure.

The Senate’s proposal appears designed to address some of these longstanding concerns by strengthening the legal framework surrounding military whistleblower complaints. Although the final language will likely evolve before passage, the direction is unmistakable: Congress is signaling that the existing system needs stronger safeguards and greater accountability.

If enacted, broader protections could expand the range of communications that qualify as protected disclosures while increasing oversight of adverse personnel actions that closely follow those reports. More importantly, the legislation could encourage investigators and reviewing authorities to ask a different question. Instead of focusing exclusively on whether a commander technically violated a statute, investigators may be asked to examine whether the adverse action would have occurred absent the protected disclosure itself.

That distinction is significant because retaliation rarely arrives wearing a name badge.

For military organizations, this discussion is about far more than employment rights. It is about institutional integrity. The military depend upon discipline and respect for the chain of command, but they also depend upon honesty. A culture that discourages reporting procurement fraud, medical safety concerns, leadership misconduct, or security failures ultimately weakens the very readiness that military discipline is intended to preserve. Effective organizations welcome accountability because accountability improves performance.

At the same time, stronger whistleblower protections should not be misunderstood as immunity from legitimate discipline. Service members remain subject to the Uniform Code of Military Justice, administrative regulations, and professional performance standards. Reporting misconduct does not shield an individual from accountability for unrelated performance deficiencies or violations of military law. Rather, these protections exist to ensure that lawful personnel actions are not used as a convenient pretext to punish those who have fulfilled their duty by reporting wrongdoing.

As attorneys, we have seen firsthand how difficult these cases can become. By the time a reprisal complaint is investigated, the damage is often already done. Promotion boards have met, assignments have changed, evaluations have become permanent records, and careers have taken a different direction. The legal process may eventually recognize that retaliation occurred, but restoring lost opportunities is often far more difficult than preventing retaliation in the first place.

“The strength of our military depends not only on discipline, but on the courage of service members who are willing to report misconduct when they see it. Whistleblower protections should ensure that truthfulness is rewarded, not punished, and that careers are judged on merit rather than retaliation.” David P. Sheldon

Ultimately, the Senate’s proposal should be viewed as more than another amendment to the National Defense Authorization Act. It represents an opportunity to reinforce a principle that is fundamental to military service: loyalty to the Constitution and the rule of law sometimes requires the courage to speak when remaining silent would be easier.

Whether these reforms succeed will not be measured by the number of pages added to the United States Code. They will be measured by whether a young lieutenant, a senior chief, or a field grade officer can report misconduct with confidence that integrity will not become a career-ending decision. The law can prohibit retaliation, but only a culture of accountability can truly eliminate it. If Congress intends to strengthen military whistleblower protections, the ultimate goal should not simply be more investigations; it should be restoring confidence that doing the right thing will never be treated as doing the wrong thing.

Disclaimer

This article is intended for informational purposes only and does not constitute legal advice or create an attorney-client relationship. Every case is fact-specific, and readers should consult qualified counsel regarding their individual circumstances.

About the Law Offices of David P. Sheldon, PLLC

The Law Offices of David P. Sheldon, PLLC, represents military service members, veterans, federal employees, USPHS Commissioned Corps officers, NOAA Corps officers, and other uniformed professionals in administrative, disciplinary, appellate, and federal litigation matters, including whistleblower retaliation claims, correction boards, medical boards, security clearances, and military justice proceedings.

Military Promotion Case Before the D.C. Circuit: Mitchell v. Phelan

Posted on November 21, 2025May 13, 2026 by Becky Haugen

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 the firm 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.

The firm will argue on behalf of LT Mitchell, emphasized the broader implications of the appeal:

“This case isn’t only about one officer’s career,” David Sheldon 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.

Government Pushes Reconsideration in Airman’s Landmark Reversal- Defense Holds Ground

Posted on October 15, 2025October 21, 2025 by Becky Haugen

Government Pushes Reconsideration in Airman’s Landmark Reversal — Defense Holds Ground

Just weeks after the Court of Appeals for the Armed Forces (CAAF) issued a unanimous ruling overturning the wrongful conviction of Senior Airman whose life was derailed by withheld evidence, the government is attempting to roll back the decision.

On September 15, 2025, the CAAF found that prosecutors violated Brady v. Maryland by withholding exculpatory evidence and destroying investigative files, ultimately denying SrA Bryce Roan a fair trial. That ruling restored his rank, pay, and dignity after years of injustice.

Now, the Air Force Government Trial and Appellate Division has filed a Petition for Reconsideration, arguing that the Court overlooked evidence and that the exoneration was premature.

The Government’s Position

In its October 8 reply, the government contends that SrA Roan “failed to show” any admissible proof that dimethylhexylamine (DMHA), the ingredient found in the pre-workout powder central to the case, could cause a false positive for cocaine. The brief dismisses the cumulative evidence recognized by the Court, claiming the “missing link” in Roan’s defense is scientific proof and that no witness could testify that DMHA could trigger such a false reading.

The government further asserts that because Roan’s roommate, SSgt N.W., did not use the DMHA defense after being granted a continuance in his own trial, the theory lacks credibility, arguing that if the defense were viable, it would have been used then.

The Defense Fires Back

In a powerful response filed October 6, the defense team led by Senior Military Defense Attorney Annie W. Morgan, rejected the government’s attempt to relitigate settled law. She argued that the request for reconsideration was nothing more than “a refusal to accept accountability,” emphasizing that Supreme Court precedent requires courts to assess all suppressed evidence cumulatively, not isolate it piecemeal.

“Reconsideration is not a second bite at the apple,” the defense brief stated. “It is an audacious attempt to recast accountability as error.”

The defense brief reaffirms that the withheld evidence, including destroyed files, undisclosed interviews, and internal Air Force communications that stripped Roan of the ability to raise an innocent ingestion defense. The filing underscores that it was government misconduct, not defense deficiency, that created the evidentiary gap the government claims was overlooked.

“Having failed to disclose, failed to preserve, and failed to confront its obligations,” wrote, “the Government now faults this Court for holding it accountable.”

What’s Next

With both sides’ briefs now before the CAAF, the nation’s highest military court will determine whether to grant reconsideration or stand by its unanimous ruling. For SrA Roan, the case is about more than legal precedent, it’s about reclaiming a life and career nearly lost to bureaucratic indifference and prosecutorial overreach.

About the Law Offices of David P. Sheldon, PLLC

The Law Offices of David P. Sheldon, PLLC, based in Washington, D.C., is a leading firm representing service members, federal employees, and veterans before military and federal courts. The firm is nationally recognized for its work defending those whose rights and careers have been jeopardized by unjust actions within the military justice system.

Disclaimer

This release is for informational purposes only and does not constitute legal advice. Past results do not guarantee similar outcomes.

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

Posted on September 11, 2023August 31, 2024 by Becky Haugen

Major Morrissey’s petition was granted on the grounds that he was engaged in hazardous duty 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)