Brian D. Schenk of midwest military & Veterans law has worked on a broad spectrum of Military personnel issues. Below is a sampling of the types results his work has achieved or substantially contributed to:
Federal Court Challenge to ABCMR’s refusal to reimburse out-of-pocket medical costs in retroactive disability retirement case
In an action filed with United States Court of Federal Claims, the government waived massive TRICARE medical debt and reimbursed an Army officer’s out-of-pocket private insurance premiums, prescription cost, and other expenses resulting in nearly half a million dollars in monetary relief. The officer was due these amounts after the Army Board for the Correction of Military Records (ABCMR) granted retroactive disability retirement but failed to reimburse him for the out-of-pocket expenses he had incurred when he and his family should have been on a low-cost TRICARE plan. To secure this relief, Mr. Schenk leveraged the Federal Circuit’s holding in McCord v. United States, 943 F. 3d 1354 (Fed. Cir. 2019) which stands for the proposition that members whose records are changed to establish retroactive disability retirement, they have a claim for damages for the out-of-pocket expenses they incurred as a result of the service’s failure to properly retired them.
Federal court challenge to BCNR denial of CRSC benefits for combat-related PTSD
In an action in the United States Court of Federal Claims, Mr. Schenk successfully challenged a Board for Correction of Naval Records (BCNR) denial of a client’s claim for Combat Related Special Compensation (CRSC). The client had suffered post-traumatic stress disorder (PTSD) from witnessing numerous combat event in the course of their duties in Afghanistan. After the Navy and BCNR had persisted in misinterpreting the direct-result-of-armed-conflict CRSC criteria to require actual engagement with the enemy, Mr. Schenk challenged the BCNR’s decision in federal court. On remand, the BCNR granted relief, which not only made the member entitled to CRSC but also opened the door for the award of attorney fees under the Equal Access to Justice Act (EAJA).
ABCMR waives ROTC disenrollment debt
The Army Board for Correction of Military Records (ABCMR) waived an ROTC disenrollment debt for a member who faced recoupment action but later enlisted and served for several years. Under a little known ABCMR policy, the board may waive ROTC recoupment if the member, despite disenrollment, enlists in the Army (or another service) and serves the time that would have been required under their ROTC contract.
Attorney fees after successful federal court challenged to AFBCMR decision
After prevailing in an action challenging an Air Force Board for the Correction of Military Records (AFBCMR) decision in the United States District Court for the District of Maryland, Mr. Schenk successfully negotiated the payment of attorney fees under the Equal Access to Justice Act (EAJA). The case involves the Air Force’s misdiagnosis of a member’s bipolar disorder as a personality disorder, thereby depriving the member of disability evaluation system (DES) processing and disability retirement benefits. It further involves the AFBCMR’s misapplication of the “snapshot in time standard” to arbitrarily exclude post-separation medical evidence and the board’s failure to engage meritorious evidence the member never had a personality disorder.
NDRB discharge upgrade
The Navy Discharge Review Board (NDRB) upgraded a member’s narrative reason from “pattern of misconduct” to “secretarial authority” after conceding that the Navy failed to adhere to its alcohol abuse policy that requires screening and intervention—with the goal of returning the member to full duty—upon a first alcohol-related incident.
ABCMR awards active-duty constructive service credit
Army Board for the Correction of Military Records (ABCMR) granted five years of active-duty constructive service credit for an E-7 unlawfully separated from his active guard reserve (AGR) position with a state Army National Guard unit. The correction to his records implicates back pay, retirement credit and pay, as well as retroactive promotion consideration for E-8 and E-9.
NDRB discharge upgrade
The Navy Discharge Review Board (NDRB) upgraded a client’s discharge from an “other than honorable” characterization of service for misconduct related to drug abuse to “general/under honorable conditions” for reason of secretarial authority. After several years of service, the client began suffering from undiagnosed bipolar disorder and extremely stressful familial issues that contributed to the misconduct for which she was separated. Mr. Schenk successfully utilized the guidance in the Kurta Memo to argue that the member’s mental health condition mitigated the misconduct.
FEDERAL COURT RULES IN FAVOR OF MR. SCHENK’S AIR FORCE OFFICER CLIENT AFBCMR-REVIEW CASE
The U.S. District Court for the District of Columbia recently ruled in favor of Mr. Schenk’s retired Air Force officer client in a case seeking judicial review of an Air Force Board for Correction of Military Records (AFBCMR) decision. The court found the AFBCMR’s decisionmaking to be arbitrary and capricious in contravention of the Administrative Procedure Act (APA) and established precedent. After extensive briefing on a voluminous record, the court entered judgment against the Air Force remanded the case to the AFBCMR for consideration that complies with the AFBCMR’s APA decisionmaking obligations. We are now seeking attorney’s fees under the Equal Access to Justice Act (EAJA).
At its core, the case involves the Air Force’s questionable use of the commander-directed investigation (CDI) process to support equally questionable, adverse command action. We are hopeful the AFBCMR corrects the errors or injustices in the record that we believe are plainly evident.
ABCMR grants retroactive entitlement for survivor benefit plan (SBP) benefits to former spouse
We secured a favorable decision from the Army Board for Correction of Military Records (ABCMR) in a Survivor Benefits Plan (SBP) matter. Client is a former spouse for a deceased retired service-member. Generally, SBP benefits are considered marital property or are otherwise assigned to the member's spouse as part of divorce proceedings. As typically stated in dissolution papers and in accordance with federal regulations, the service-member must change his SBP election from "spouse" to "former spouse" time a specified period of time from the finalization of the divorce. Perhaps not surprisingly, they do not always make this election to give their now-divorced spouse an SBP annuity upon their death. In such cases, when the service members dies, the former spouse only then discovers they are not entitled to the SBP because no election was made. The former spouse must then petition the BCMR to correct the error.
After the ABCMR granted relief, Mr. Schenk worked with the Defense Finance and Accounting Service (DFAS) to ensure the client’s back pay was properly disbursed and that the ABCMR’s directive was otherwise complied with.
BCNR Cites Wilkie Memo in upgrading Navy client’s discharge
In August 2021, the Board for Correction of Naval Records (BCNR) upgraded Mr. Schenk’s former-sailor client’s other than honorable (OTH) discharge. Despite initial years of quality service, the client had been administratively separated on accountof receiving nonjudicial punishment for, among other things, unauthorized absence and drug use—all of which occurred after he had been involved in a traumatic event aboard a vessel. Mr. Schenk worked with the client to fully explain the details of the client’s discharge and to accrue and present compelling evidence of rehabilitation and exemplary post-service conduct. He further utilized the guidance of the Wilkie Memo to successfully persuade the BCNR to upgrade the client’s discharge on clemency grounds.
BCNR Upgrades Marine’s Other-Than-Honorable Discharge
In June 2021, Mr. Schenk’s Marine client received an upgrade to his decades-old, other-than-honorable (OTH) discharge from the Board for Correction of Naval Records (BCNR). In the petition he submitted on his client’s behalf, Mr. Schenk presented mitigation and rehabilitation evidence and assisted his client in acquiring key post-service conduct evidence that he made a point of emphasis for the Board’s consideration. The BCNR members agreed that the Marine’s mitigating circumstances and his post-service record were worthy of relief in the interest of justice.
Federal Court Rules In Favor Of Mr. Schenk’s Army Officer Client In G.I. Bill benefits Transfer Case
On March 31, 2021, the United States District Court for the District of Columbia (DDC) entered judgment in favor of an Army Reserve officer-client who challenged the Army’s denial of his attempts to transfer a portion of his GI Bill benefits to his children.
BCNR Directs Resumption of Disability Evaluation System Processing for Involuntarily Separated Member
Mr. Schenk appealed the separation of a member who was unlawfully separated while he was being processed in the Disability Evaluation System (DES). In any service branch, a member’s DES case takes precedence over many other causes for separation and may only be terminated in specific circumstances, typically if a member commits misconduct. In this case, the Navy improperly separated the member under a non-misconduct regulation and unlawfully terminated his DES case. Mr. Schenk successfully challenged the Navy’s actions to the BCNR who granted relief and directed that the Physical Evaluation Board (PEB) resume processing.
AFBCMR Grants Nearly Two Years of Retroactive Medical Continuation (MEDCON) Pay
In certain circumstances, the Air Force may extend or otherwise place a member on active-duty orders to process them through the Disability Evaluation System (DES). Called medical continuation (MEDCON), the member remains on active duty, earning active duty pay, through the pendency of their DES processing. In a case involving a member who was erroneously deprived of MEDCON orders for a very protracted DES case, Mr. Schenk successfully petitioned the AFBCMR who granted relief that resulted in, among other things, two years of active duty MEDCON pay.
Marine Retroactively Retired Through BCNR Records Correction
Mr. Schenk successfully argued to the Board for Correction of Naval Records that a Marine officer was erroneously and unfairly denied a reserve retirement. Although the Marine had amassed nearly 4000 reserve points, he had not been credited for the requisite 20 “good years.” Mr. Schenk gathered evidence and argued to the Board that, decades ago, the Marine should have been credited for two good years, transferred to the retired reserve, and entitled to retired pay at age 60. The BCNR agreed and directed corrections to the Marine’s records that effectively entitled him to retired pay and, perhaps more importantly, give the officer the pride of being a military retiree.
BCNR Upgrades Other Than Honorable Discharge
In September 2019, the Board for Correction of Naval Records (BCNR) upgraded an other than honorable (OTH) discharge for a client who had been separated for reason of misconduct nearly 26-years earlier. Mr. Schenk argued that the client’s post-service conduct warranted relief from the Board and presented substantial performance and character evidence, ultimately leading to an upgrade to his characterization of service and narrative reason.
BCNR Directs Retroactive Physical Evaluation Board Consideration
In September 2019, the Board for Correction of Naval Records (BCNR) granted relief for Mr. Schenk’s client and awarded retroactive consideration by the Physical Evaluation Board (PEB) to determine the client’s entitlement to disability benefits. The client, a reservist, was found medically unqualified for reserve duty and separated without being placed in the Integrated Disability Evaluation System (IDES) to determine the sailor’s entitlement to disability retirement. Mr. Schenk argued that the condition for which the sailor was separated from the reserves had been incurred during a prior active-duty period and the Navy erred in failing to afford the sailor IDES processing.
Army Medical Evaluation board Findings Reversed
In February 2019, Mr. Schenk successfully challenged Army Medical Evaluation Board (MEB) findings that an officer’s unfitting condition existed prior to service and was not service aggravated. After Mr. Schenk filed a comprehensive rebuttal, the MEB reversed its findings to reflect that the officer’s condition had been permanently service aggravated, thereby paving the way for disability compensation through the Army’s Integrated Disability Evaluation System (IDES).
Army ROTC Disenrollment Avoided
In the Fall 2018, Mr. Schenk assisted an Army Reserve Officer Training Corps (ROTC) cadet who was facing disenrollment—and possible recoupment of over $150,000—for failure to meet physical fitness standards. Mr. Schenk advised his client throughout the process worked to place pressure on the cadre. Ultimately, a procedural error was exposed and the cadet was allowed a remedial fitness test, which he passed. He was commissioned in January 2019 and will be a great officer.
Barring Order Rescinded
In November 2018, Mr. Schenk successfully petitioned the Army to rescind an order barring his client from entering U.S. Army Europe installations.
Client awarded 80% Combat-Related Special Compensation (CRSC)
In October 2018, Army Human Resources Command approved Mr. Schenk’s client’s claim for Combat-Related Special Compensation (CRSC), awarding 80% total combat-related disability for various injuries. Mr. Schenk researched, drafted and submitted the CRSC claim on his client’s behalf.
GOMOR Transferred to restricted file
In August 2018, the Department of the Army Suitability Evaluation Board (DASEB) notified Mr. Schenk’s client that it had directed transfer of a General Officer Memorandum of Reprimand (GOMOR) to his restricted file, effectively insulating it from review of any future promotion boards. As many Army members know, a GOMOR can be a barrier to career advancement and often lead to early separation. But they can be transferred to a restricted file upon proper petition to the DASEB. Mr. Schenk worked with his client to submit a compelling petition to the DASEB, which directed that his GOMOR be placed in his restricted file.
Another Security Clearance Protected
In October 2017, Mr. Schenk’s client received a “Statement of Reasons (SOR)” and notice of intent to deny his security clearance due to a few indiscretions before he joined the United States Air Force. In response, Mr. Schenk worked with his client to develop a rebuttal that addressed the specific allegations in the SOR and provided key mitigating evidence and arguments in favor of granting his clearance. In January 2018, the Department of Defense granted the client’s security clearance. The Air Force acted swiftly to place the client back into training so that he can resume his career.
Navy Formal PEB Places client on TDRL with combat-related designation
In August 2017, Mr. Schenk represented a Naval member at a Formal Physical Evaluation Board (FPEB). At the hearing, the PEB placed the client on the Temporary Disability Retired List (TDRL) with a combat-related designation, effectively overturning previous findings by the Medical Evaluation Board (MEB) and Informal Physical Evaluation Board (IPEB).
The case involved novel and unique circumstances wherein the client was claiming combat-related PTSD despite not physically being in a zone of danger. After researching the issue and crafting persuasive written material, Mr. Schenk successfully argued that the client’s unique circumstances fell within the requirements for combat-related disability under 10 U.S.C. § 1413a.
After the FPEB issued its findings, Mr. Schenk then successfully petitioned the Veterans Administration for a rating increase to 70% under the Integrated Disability Evaluation System (IDES) rules for reconsideration.
Survivor Benefit Plan Annuity Retroactively Awarded
After months of effort, the Defense Finance and Accounting Service (DFAS) paid Mr. Schenk’s client a sizable five-figure lump-sum Survivor Benefit Plan (SBP) annuity payment. Due to a variety of extraordinary factors, procuring the payment required months of coordination with the Department of Justice, Board for Correction of Naval Records (BCNR) and DFAS.
Unbeknownst to the client, his retired Naval officer father who passed away years ago, had paid into SBP, which is a plan designed to provide survivors with cost-of-living income while they are minors and/or attending college. The client completed college without receiving any SBP annuity and moved on with his career for years until he received notice from a plaintiff in a pending United States Court of Federal Claims (CFC) action that essentially claimed entitlement to the client’s portion of the annuity. Mr. Schenk, who is licensed to practice in the CFC, contacted the Department of Justice (counsel for the United States) and informed them that his client intended to file an administrative claim for his portion of the SBP benefit. This delayed the CFC litigation--and kept his client out of court--while Mr. Schenk coordinated with DFAS to submit a BCNR application that effectively removed a statutory cap on the amount his client could receive. After successfully petitioning the BCNR to remove the cap through a retroactive records correction, Mr. Schenk then petitioned DFAS, who disbursed a sizable lump sum to his client.
Security clearance protected
Mr. Schenk’s client received a notice of intent to revoke his security clearance due to allegations contained in an Army Criminal Investigations Command (Army CID) investigation. In response, Mr. Schenk compiled a rebuttal that systematically attacked CID’s findings and emphasized key mitigating evidence in support of his client’s request to keep his clearance. In June 2017, the Department of Defense decided not to revoke the client’s clearance.
In March 2015, Mr. Schenk, in conjunction with a stellar legal team that included attorneys from prominent Supreme Court litigation firm, Jenner and Block, acted as co-counsel on a petition for a writ of certiorari filed with the United States Supreme Court in Schwalier v. Carter.
The petition raised the question of whether certain provisions of the Defense Officer Personnel Management Act violates the Appointments Clause. Also supporting the petition as Amicus Curiae was the Military Officers Association of America & the General Officers’ Network as well as the Air Force Association and former Air Force Secretaries Dr. James G. Roche and Michael W. Wynne.
Partial summary judgment in federal court holding a Board for Correction of Naval Records (BCNR) decision arbitrary and capricious in violation of the Administrative Procedure Act (APA) and remanding the matter to the Secretary of the Navy for further proceedings.
In this case, the BCNR had failed to provide any basis for the Court to conclude that its decision was the product of reasoned decision making, which is a violation of the APA.
PARTIAL SUMMARY JUDGMENT IN FEDERAL COURT HOLDING UNLAWFUL DECISION A DECISION OF THE ARMY BOARD FOR CORRECTION OF MILITARY RECORDS (ABCMR) AND REMANDING THE CASE FOR PROPER CONSIDERATION.
The ABCMR had failed to adequately address the arguments the plaintiff had presented to it. On remand, when forced to address these arguments, the ABCMR granted full relief entitling the plaintiff removal of an adverse Officer Evaluation Report (OER) and Special Selection Boards (SSB) who will determine whether he should be retroactively promoted.
Full relief from the Army Board for the Correction of Military Records (ABCMR) relieving ROTC scholarship recipient of a substantial outstanding debt.
Due to health problems, the cadet could not complete satisfactorily complete the program’s physical fitness requirements. The Army stopped paying the cadet’s tuition while the university still allowed her to remain in school. As a result, the university sought substantial tuition reimbursement from the cadet. Based on the arguments made in an application to the ABCMR, the Board found the cadet’s benefits unjustly had been suspended and corrected her records to reflect that she had remained in the ROTC program. The corrections resulted in the Army settling the cadet’s outstanding debt with the university.
Discharge upgrade by the Naval Discharge Review Board (NDRB) and reenlistment code upgrade by the Board for Correction of Naval Records (BCNR).
Client was a former Marine who had received a General (Under Honorable Conditions). On a paper review, the DRB had already upgraded the Marine from an Other than Honorable to a General discharge for reason of misconduct. Upon re-application, the NDRB further upgraded the discharge to Honorable but failed to remove barriers to the client’s reenlistment. Upon application to the BCNR, the Board finally upgraded the client’s reenlistment code to RE-1 and paved the way for future service.
Summary judgment in federal court setting aside unlawful decision of the Army Board for Correction of Military Records (ABCMR) and remanding the case for proper consideration.
On remand, the ABCMR granted favorable relief for an Army chaplain who had been unjustly issued a negative Officer Evaluation Report (OER) and denied promotion to colonel. The ABCMR ordered redaction of all adverse language from the OER and directed that the chaplain be reconsidered for promotion to colonel based upon a corrected record.
Successful grant of state medical license for former Navy physician.
Years ago, the physician was subjected to adverse privileging recommendations that were later rejected by the cognizable authority who reinstated the physician’s privileges without restriction. Nonetheless, the ordeal left its mark and presented red flags for a state medical licensing board considering the physician’s application to practice medicine. The Board requested several explanations and significant amounts of documentation, much of which the physician did not possess due to the passage of time. Despite these obstacles, Mr. Schenk and his former firm were able to gather the documentation from the Navy through repeated, targeted requests. They were further able to assist the physician in explaining complicated Navy procedures to the licensing board that left no doubt the physician was a competent provider who should receive a license without hesitation.
Full relief from the Air Force Board for Correction of Military Records (AFBCMR).
Client was an ROTC cadet who was wrongfully disenrolled and faced significant debt recoupment. The AFBCMR directed removal of the client’s record of disenrollment and ceased all recoupment actions.
Denial of Defendant United States of America’s motion to dismiss Federal Tort Claims Act (FTCA) action.
The Defendant argued that Plaintiff had failed to meet a pre-suit notice requirement in the District of Colombia’s Medical Malpractice Proceedings Act (MMPA). Based on Mr. Schenk’s research and writing, Plaintiff argued that the Court could and should waive the requirements of the MMPA in Plaintiff’s case. The Court agreed and denied the Defendant’s motion to dismiss. The denial paved the way for a six-figure settlement.