Monday, 21 October 2019

Civil Protections and Remedies for Servicemembers

Service members salute the American flag during a retreat ceremony (2014). The four military members represented each branch of the U.S. military and assembled to show solidarity. (U.S. Air Force photo by Airman 1st Class Harry Brexel/Released)

By Kyndra Miller Rotunda

Reviewed by Ms. Cornelia Weiss, Colonel (Ret), USAF

“Civil Protections and Remedies for Servicemembers” is designed to provide the legal practitioner and individuals…understandable text and detailed section titles “in order to aid…in turning to just the right page when needed.

Service members returning from deployment often experience legal problems—such as not receiving disability entitlements, returning home to a default judgment entered while deployed, among numerous other issues. “Civil Protections and Remedies for Servicemembers” is designed to provide the legal practitioner and individuals proceeding pro se with understandable text and detailed section titles “in order to aid…in turning to just the right page when needed.”[1]  The author, Kyndra Miller Rotunda, is Professor of Military & International Law at Chapman University who previously served as an Army judge advocate. Written as both a call to serve veterans and a roadmap for getting started, this book addresses: the Federal Torts Claims Act; the Servicemembers Civil Relief Act (SCRA) (to include federal and state law provisions); service members’ employment protections under the U.S. Employment and Reemployment Rights Act (USERRA); disability claims within the Medical and Physical Evaluation Board (MEB/PEB) hearings; the Veterans Administration (to include disability compensation and pension claims); Traumatic Service Group Life Insurance (TSGLI) Appeals; and Discharge Review Boards and Boards of Correction to Military Records.

The book offers a primer for civilian attorneys (“Military 101”) to include the basics of “military lingo.”

The book offers a primer for civilian attorneys (“Military 101”) to include the basics of “military lingo.”  The book lists law school clinics and pro bono organizations that can help when JAG offices are unable to provide support to service members and veterans. The book also contains forms, tables of laws, rules, secondary authorities, cases, pay and allowance charts, rank charts, and an index to augment the reader’s search inquiries.

Legal Obstacles

“Civil Protections and Remedies for Servicemembers” addresses legal obstacles that military members face. The author addresses how the Feres doctrine[2] has been interpreted to bar service members from maintaining actions for racial discrimination,[3] Post Traumatic Stress Disorder (PTSD),[4] sexual assault and sexual harassment,[5] and asks whether such a “blackout curtain”[6] serves better than “sunshine as the best disinfectant.”[7] One legal obstacle the author presents Chappell v. Wallace,[8] where the court found that “the Military’s stated need for discipline and conformity reigned superior over a service member’s Constitutional right to be free from illegal racial discrimination.”[9]  The author states how service members may also face significant challenges in child custody proceedings while deployed. For example, the author highlights that although the purpose of laws like SCRA is to “delay civil legal proceedings so that service members can focus on the mission at hand until after they have returned from military service,”[10] the “reality is that judges may not grant initial custody stays; may not continue to stay a child custody case for the entire duration of a deployment; and may even make permanent changes to child custody agreements entered prior to deployment.”[11]

Entitlements

“Civil Protections and Remedies for Servicemembers” also addresses “entitlements” that service members may receive. Such entitlements may include claims for “disabilities that result from venereal disease contracted during a period of military service,”[12] blindness that occurs after leaving the service,[13] punitive discharge based on PTSD behavior,[14] and retaliatory discharge after being raped.[15]

Understanding the differences between disability claims within the military and disability claims before the VA is no light task.

Understanding the differences between disability claims within the military and disability claims before the VA is no light task. The author does not disappoint in this challenge. In the book, the author presents a clear and well thought-out framework that enables the reader to understand the main differences and nuances between the two systems. Ultimately, the author highlights the main distinction between disability claims within the two systems as, “The Military’s Disability System is comparable to Worker’s Compensation Systems; while the VA is more comparable to the Social Security Disability System. One is focused on work related injuries that lead to inability to continue working; the other is focused more generally on disabilities that occurred while working, whether or not they ended one’s career.”[16]

Conclusion

The book, as the author notes, “will not transform the reader into an over-night subject matter expert,” but it does provide “solid tools and clear direction.”[17]  It is my hope that JAGs and paralegals alike will take up the author’s invitation to contact her directly with comments, suggestions, or feedback for the betterment of future editions in the quest to serve and honor all military service members—past, present, and future.

About the Reviewer

Ms. Cornelia Weiss, Colonel (Ret), USAF
USAF (A.A., Colorado Mountain College; B.A., University of Utah; J.D.,Vanderbilt University School of Law; Master’s in Defense and Security Studies of the Americas, Academia Nacional de Estudios PolÍticos y Estratégicos) writes on law and security issues.

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Endnotes

[1] Kyndra Miller Rotunda, Civil Protections and Remedies for Servicemembers, 3 (Eagan, Minnesota: Thomson Reuters, 2017).
[2] Feres v. U.S., 340 U.S. 135 (1950).
[3] Rotunda, supra note 1, at 87.
[4] Id. at 88.
[5] Id. at 91-94.
[6] Id. Blackout curtains prevent light from entering or exiting.
[7] Id. at 94.
[8] Id. at 87. See also, Chappell v. Wallace, 462 U.S. 296 (1983)
[9] Rotunda, supra note 1, at 87.
[10] Id. at 130.
[11] Id. at 130-131.
[12] Id. at 3.
[13] Id. at 301.
[14] Id. at 3.
[15] Id. at 314.
[16] Id. at 215.
[17] Id. at 282.

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