Military law, Military lawyers, Military lawyer, Military personnel, Military discharges

Mr. Toney has a strong preference for cases involving PTSD, TBI, and other disabilities arising from combat service. He has very significant knowledge of and experience with such conditions and strongly believes that the duty of the Armed Forces to care for personnel with such disabilities is more than a legal obligation--it is a moral duty. Unfortunately, the military often fails to do so and the consequences for the veteran can be horrific. When things do go wrong, Mr. Toney will step-up and be a forceful and passionate advocate for you or your loved one.

Mr. Toney also considers cases that do not involve combat injuries. His preference is for those cases that, if successful, would require the military to reinstate the client and/or award him or her backpay and other benefits. This situation can arise from a variety of actions such as: 1) unlawful termination of physical disability evaluation; 2) unlawful discharges; 3) unlawful promotion denials; 4) unlawful or unfounded non-judicial punishment; and many others. While Mr. Toney strongly prefers to get involved in a case before such consequences occur, once the damage is done there are important remedial measures available. The more important of these are addressed below.

Administrative Separation Boards (aka Boards of Inquiry)

Servicemembers who are alleged to have committed misconduct may be referred to an administrative separation board to determine whether conduct was committed, whether considered service is appropriate, and if discharge is appropriate, what discharge characterization to recommend. The boards consist of three military members and a military lawyer presents the case against the servicemember. This procedure is similar to a traditional "trial" except the formal rules of evidence do not apply. Servicemembers appearing before a separation board are entitled to legal counsel, military or civilian.

Separation boards are obviously extremely important and aggressive representation is crucial. The boards can and do find no misconduct and vote to retain servicemembers. The case, however, must be thoroughly investigated and the defense well-organized if the board members are to be persuaded to retain the member or recommend a discharge characterization that is not stigmatizing. Mr. Toney provides clients facing administrative separation boards with the thorough investigation and aggressive representation required to ensure the best chance of success--retention in the Armed Forces.

Boards for the Correction of Military Records

Each branch of the military, as well as the Coast Guard and the Public Health Service, operates a records correction board. These boards are empowered by federal statute to correct a member's record where the member provides sufficient evidence of error or injustice. The boards may grant a broad range of relief depending on individual circumstances. The boards are composed of civilian members and report to the secretary of the military department concerned.

Applications to the correction boards must be submitted within 3 years of the discovery of the error or injustice. This time limit can be waived by the board in the interests and fairness and justice. For members on active duty, the 3 year period does not begin to run until he or she is discharged from active duty. The boards take approximately 10 to 12 months to process and decide a member's application.

The types of actions commonly presented to the corrections boards include: 1) challenges to adverse or unfavorable evaluation reports; 2) Letters of Reprimand; 3) unfavorable physical disability determinations; 4) non-judicial punishment (Captain's Mast, Office Hours, Article 15); 5) discharge characterizations and reenlistment codes; 6) debt disputes; 7) promotion delays and withdrawals; 8) retaliatory actions; 9) discrimination and harassment; 10) misconduct; 11) pay and grade disputes; and 12) ROTC or Academy disenrollment.

To ensure a member's chance of success, great care must be exercised when applying to the correction boards. All errors and injustices must be clearly identified, researched, and supported with objective evidence (wherever possible). All available information such as service records, official communications, e-mails, reports of investigation, evaluations, promotion recommendations, and witness statements must be obtained and carefully analyzed. Though not required, it is in the best interests of the member to retain the services of an experienced attorney such as Mr. Toney. This is especially so where the case is complicated and/or the consequences for the member are serious, and where judicial review in federal court may be desired.

Each branch of the military has a Discharge Review Board to consider applications for former service members who want to upgrade their discharge characterization. Former Marines must apply to the Navy Discharge Review Board. In reviewing applications, the review boards consider many factors such as the reason for separation; the accuracy and fairness of the discharge characterization; the applicant's conduct since discharge; and other mitigating factors.

Individuals must apply to the discharge review boards within 15 years of the date of their discharge. Contrary to popular belief, there is no required six-month waiting period, and there is no automatic discharge upgrade after six-months have passed. The only way to obtain a discharge upgrade is by applying to a review board and convincing the board members that the discharge characterization should be corrected.

Federal courts are authorized to review decisions of the military under certain circumstances (known as "judicial review"). Before seeking judicial review, the member normally must "exhaust all administrative remedies." What this means is that the member must pursue all avenues of relief provided by the military before going to federal court. The administrative remedies that must be exhausted will vary from case to case and will determine when judicial review is available.

For example, a member who has applied to the Board for the Correction of Military Records may obtain direct judicial review of the Board's final decision. If the applicable time limits have not expired (commonly six years from the "date of injury"), a federal court will review the Board's decision and may award the member relief such as reinstatement, back-pay and allowances, removal of adverse information, voiding or correcting evaluation reports, and referral to a Special Selection Promotion Board for promotion consideration. The relief available will depend on the circumstances of the case and the relief the member requested from the correction board.

There are other situations that permit a member to seek judicial review of military decisions. Such situations include but are not limited to: (1) breach of contract; (2) unlawful discharge from or retention on active duty; (3) the denial of applications for discharge as a conscientious objector; (4) involuntarily disenrollment from ROTC, West Point, the Air Force Academy, and the Naval Academy; and (5) deployment to Iraq or Afghanistan.

If established military administrative procedures are ineffective, enforcing your legal rights through judicial review may be the best and only remaining option. Success in federal court, of course, depends on the strength of the member's legal claims and how thoroughly the member's application to the correction board was prepared.

Military personnel who are injured or suffer serious illness while on active duty may be referred by a commander or physician for possible disability evaluation processing. The first step in the process is to undergo a Medical Evaluation Board (MEB). The MEB reviews the member's records and determines whether the member may have a condition that renders him or her unfit to perform their duties. If such a condition is found, the member is referred to an Informal Physical Evaluation Board (IPEB).

The IPEB determines whether or not the member is medically fit for duty. If found fit, the IPEB returns the member to duty. If found unfit, the IPEB establishes the disability rating, which can range from 0% to 100% disabled. If a member receives a rating of less than 30%, he or she is medically discharged with severance pay. If rated 30% or higher, the member is placed on either the Temporary Disability Retired List or the Permanent Disability Retired List, depending on whether the board concludes that the condition may or may not improve with time and further treatment.

If a member is dissatisfied with the IPEB's decision, he or she may request a formal hearing at which he or she appears before the board. This is a crucial right and a crucial decision! It should never be waived without consulting first with experienced legal counsel such as Mr. Toney. If you request a formal hearing, you are entitled to representation by a military lawyer at no charge. You also may hire a civilian lawyer instead. Depending on the facts of your case, hiring an experienced civilian lawyer may be a wise investment. Military disability lawyers handle a large number of cases and often will meet with a member only once, sometimes on the morning of the hearing. They may not have the time and resources required to fully develop and present your case.