Sovereign immunity typically prevents lawsuits from being filed against the government. In certain situations, however, the Federal Tort Claims Act (FTCA) may suspend this immunity. The Act states that the “United States shall be liable, respecting…tort claims, in the same manner and to the same extent as a private individual under like circumstances.” As a result, under extremely rare and specific circumstances, federal law does permit you to sue the U.S. government for monetary damages due to wrongful discharge, improper retirement, denial of promotion, service-related disability, and incorrect military records. However, a lawsuit against the government is nothing short of an uphill battle and many times simply isn’t worth the trouble that it brings. This is not to say, however, that you cannot seek other legal remedies to right these wrongs. A military defense attorney like Aden Wilkie can help advise you on what your best legal option may be depending on your specific circumstances.
Can a Civilian Sue the Military?
Service members cannot sue the military under the Federal Tort Claims Act while still in active duty, and in some cases, even after they become civilians. The exception is when the wrongful conduct occurred while they were currently in civilian or retired status.
When it comes to suing the military, it is often either retirees or active service members who wish to partake in such a legal battle, the reason typically being due to wrongful discharge. Wrongful discharge lawsuits occur when service members are released in violation of legislative requirements, service regulations, or when they are denied due process under the law. Involuntary retirement is also included.
A service member generally receives an other-than-honorable service classification upon discharge. If it is determined that he or she was wrongfully discharged, the Court may award a discharge upgrade and back pay for the service member in question. The following are some of the more common cases of wrongful discharge:
- The execution of unjust or biased proceedings
- Failure to properly summon a separation board
- Violations of due process during the elimination process
- Errors in drug testing or unknowing ingestion of a substance
- Incorrect filing of military records
With these cases, however, wrongful discharges stand a much better chance at being remedied through military record corrections, such as a military discharge upgrade, rather than by filing suit against the military.
Can a Veteran Sue the Military?
As mentioned before, active-duty military personnel are not permitted to sue the US Army, Navy (Marine Corps), Coast Guard, or Air Force in federal court. But what about veterans?
Retirees and veterans, civilian employees, dependents, and unaffiliated civilians are technically all eligible to sue the military, though again, actually accomplishing that is typically very difficult. (Remember that in the case of military veterans, they cannot sue for conduct that occurred while still on active duty.)
Military pay claims made by service members against the US government for wrongful discharges, promotion non-selection, or denial of military retirement may be decided and awarded by the US Court of Federal Claims. The Court also investigates judgments made by the Correction Board.
However, before you even attempt to sue in federal court for wrongful discharge, you must exhaust all of your “administrative remedies” first. This includes petitioning the Discharge Review Board (DRB), the Board for Correction of Military Records (BCMR), and/or the United States Court for Federal Claims for remedy (CFC).
If you’re looking for back pay, retirement, or other benefits that were taken away because of your wrongful discharge, it is highly recommended that you talk with a military defense lawyer about your rights under the Tucker Act (28 U.S.C. § 1491) and Military Pay Act (37 U.S.C. §§ 204 & 206). The Federal Claims Act (qui tam) laws may also apply, but again, you should speak with an attorney for further information regarding your specific circumstances. Though you may not have a valid claim for actually suing the military, you may be able to obtain record corrections and a discharge upgrade.
Military Lawsuit – Holley v. United States
The Background
An important case that demonstrates a legal claim against the military for wrongful discharge occurs in the case of Holley v. United States, 124 F.3d 1462, 1465. In this case, plaintiff John D. Holley, Jr., was issued a Letter of Reprimand in March of 1988 after two alleged incidents regarding positive illegal drug usage in the military. In the months that followed, Holley received an outstanding officer evaluation, three Army Achievement Medals, and otherwise maintained a pristine record.
Approximately nine months after the reprimand, Holley received notice of an “Initiation of Elimination” action. The notice stated that a general discharge was being proposed and that unless the discharge was under other than honorable terms, there would be no reference to a board of inquiry. The letter offered him legal aid in preparing a written statement or reply, as well as the option to resign.
In February of 1989, Holley released a written statement claiming full responsibility for his actions. He also noted his excellent record and the actions he had since taken to overcome his improprieties. Despite this, the discharge of John D. Holley, Jr. was approved the following March of 1989, classified as a “General (Under Honorable Conditions)” discharge. A Board of Inquiry referral was never made.
The Verdict
Holley filed suit in the Court of Federal Claims on April 9, 1992, alleging statutory, regulatory, and constitutional violations. He claimed that because the Army did not hold a hearing, he had little chance to defend himself against the discharge. He further indicated that a hearing was necessary given the stigmatizing character of the general discharge and the disparaging language on the official discharge form. Holley requested reinstatement, back pay, and the correction of his military service records.
According to the Court of Federal Claims, this discharge violated Holley’s constitutional rights and the Army abused its authority by failing to order a hearing before a BOI. The stigmatizing character and derogatory wording of the discharge were given dispositive weight by the court, which relied on previous judicial rulings and statutory requirements.
The government later appealed the decision based on its merits and argued that the Court of Federal Claims lacked jurisdiction. Even if the issue of whether a stigmatizing discharge requires a hearing were within the court’s jurisdiction and decided in Mr. Holley’s favor, the government claimed, he would only be entitled to the remedy of clearing his name, which the government claims is not available in the Court of Federal Claims. As a result, the government raises threshold objections to the trial court’s jurisdiction, claiming that the court lacked jurisdiction over any of Mr. Holley’s claims and issues under any theory of the case.
The U.S. Court of Appeals ultimately reversed the decision of the Court of Federal Claims, finding that Holley’s statutory, regulatory, and constitutional rights were not violated.
The Takeaway
Except for officers on “probationary” status, a commissioned officer facing discharge is entitled to a pre-discharge hearing before a board of inquiry. A probationary officer is one who has served for fewer than five years. Because Mr. Holley had less than five years of commissioned service, he was under probationary status. Thus, the Court found that no rights were violated.
In summary, though certain cases may have some merit to go up against the government in a legal battle, it is extremely difficult and rather unlikely that they will walk away successful. Therefore, your best bet would be to take other measures to seek remedy, such as hiring a criminal defense attorney that can assist you in correcting your records or defending you in your military trial.
Wrongfully Discharged from the Military? Contact The Devil Dog Defender Today
If you have more questions like “Can you sue the military for wrongful discharge?” or if you feel you have been wrongfully discharged from the military, it’s important that you seek qualified legal counsel right away. Obtain the services of an experienced military defense attorney like Aden Wilkie, the Devil Dog Defender. Wilkie’s extensive background in both military duty and defending service personnel in legal issues ensures you have the most efficient legal counsel in your corner. He will do everything in his power to help you stand up to this injustice and restore your reputation.
The Wilkie Law Firm is based in Jacksonville, North Carolina and provides services to military members in Camp Lejeune, Fort Bragg, and a number of other bases, camps, stations, and posts around the country (though travel fees may apply). Call the Wilkie Law Firm now at 910-333-9626 to get someone on your side who knows how to fight for you.
