How JustAnswer Works:
  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.
Ask N Cal Atty Your Own Question
N Cal Atty
N Cal Atty, Military Law Answer Team
Category: Military Law
Satisfied Customers: 9300
Experience:  Military Law Expert
9653905
Type Your Military Law Question Here...
N Cal Atty is online now
A new question is answered every 9 seconds

My dad was at Operation Crossroads, Bikini Atoll 1946, his

Resolved Question:

My dad was at Operation Crossroads, Bikini Atoll 1946, his kids and our kids have many after effects from this. While my dad is still with us I am seeking, at minimum, medical for life, for his 1st and 2nd descendents. This is due to his heavy exposure to radiation, that has brought him tumors, (removed from chest), tumors in his back,(cannot be removed) prostate cancer and now melanoma. Offspring (4) born 1954-61 all have diabetes, bone (DISH syndrome) and other health issues. Grandchildren suffer severe body pain and meshed skin pigmentation, to list a few. My dad, as a retired veteran has no recourse with the government, but I would believe and hope his children/grandchildren would.
Stormy
Submitted: 6 years ago.
Category: Military Law
Expert:  N Cal Atty replied 6 years ago.
I'm really sorry to hear this.

Has your Dad applied for any VA benefits?
Customer: replied 6 years ago.
My dad is doing ok for his age, has all the medical coverage, VA benefits needed. It's the next 2 generations I am most concerned with. I am not seeking help/assitance for my dad. Some studies show health issues can continue to worsen with each generation, but the effects seem greater in the 2nd generation than his 4 kids. I am looking for assistance for his kids/grandkids, not my dad. He is well taken care of. I thought my first inquiry was quite clear, I am seeking help for his loved ones, not my beloved and honorable father.
Expert:  N Cal Atty replied 6 years ago.
Your father may be eligible for additional compensation.

http://www.naav.com/ links to
http://www.naav.com/assets/A-Vet-Claims-Pack.pdf
which states
the Radiation Exposure Compensation Act ( RECA ,) administered by the Department of Justice ( DOJ ) is a viable option. It is a different compensation program for which the A-Vet may be eligible. RECA will pay the A-Vet a ( one time ) lump sum of $75,000 for any radiation health issue that qualifies as being “presumptive.” It is possible to receive an additional $75,000 for a second “presumptive” illness. It is also possible for the A-Vet to receive compensation for one type of “presumptive” cancer from the VA, while applying for the lump sum from RECA for a second type of presumptive cancer, without the loss of the VA compensation. And, the VA will treat both types of cancers at no cost to the A-Vet. Additionally, the surviving spouse ( and in some cases, the children ) of a deceased A-Vet can apply for survivor ( DIC ) benefits from the VA, if the death was caused by a “presumptive” health condition.




In general "The United States is not liable under the Federal Tort Claims Act for injuries to members of the armed forces sustained while on active duty and not on furlough and resulting from the negligence of others in the armed forces." because of what is called the Feres doctrine, see
http://usmilitary.about.com/library/milinfo/blferes.htm

Feres would not appear to apply to children who were not born at the time the soldier was exposed to radiation, but there is a split of authority in the Federal courts.

http://www.fas.org/sgp/crs/misc/95-717.pdf
states at pages 15-16 of the pdf:
Similarly, courts of appeals have held that the Feres doctrine bars recovery by
children born with birth defects that resulted from genetic changes in their fathers
that occurred when they were exposed to radiation while on military duty.33
However, “the Feres doctrine does not bar an action against the United States for a
service-related injury suffered by a veteran as a result of independent post-service
negligence,” such as failure of the government to warn or monitor a veteran who had
been exposed to radiation.34 A district court has held that the Feres doctrine does not
bar suit by the daughter and grandson of a soldier who was the victim of such
negligence.
citing
Seveny v. United States Government, Department of Navy, 550 F. Supp. 653 (D. R.I.
1982).

At page 19 of the same pdf:
In 1990, Congress enacted the Radiation Exposure Compensation Act, 42
U.S.C. § 2210 note, a compensation program for victims of atomic testing and
uranium mining. It authorizes $50,000 to be paid to any person who contracted
leukemia or certain listed cancers and was physically present in an area affected by
atmospheric nuclear tests for specified periods from 1951 through 1962. It also
authorizes $75,000 to be paid to any person who contracted leukemia or certain listed
cancers after having participated onsite in an atmospheric nuclear test. Finally, it
provides $100,000 to any person employed in a uranium mine at any time from 1947
to 1971 who contracted lung cancer or a nonmalignant respiratory disease, if he was
exposed to specified levels of radiation. (In none of these cases is a claimant
required to prove that radiation exposure actually caused his disease.) A person who
accepts compensation under the act forfeits all right to sue the United States or any
federal contractor for claims arising out of the same radiation exposure. “This act
was patterned in part on the Radiation-Exposed Veterans Compensation Act of 1988
(P.L. 100-321).”42 Department of Justice regulations under the Radiation Exposure
Compensation Act appear at 28 C.F.R. Part 79.

Crossroads has been studied to some extent, see
http://www.nap.edu/catalog.php?record_id=5428#description
but that book does not seem to refer to effects on the descendants of the servicemen who were exposed. This might:
http://heinonline.org/HOL/LandingPage?collection=journals&handle=hein.journals/cdozo6&div=23&id=&page=
but I do not have access to the whole article.

I suggest contacting the
http://www.naav.com/
and asking if they are aware of any claims by descendants.

You can get a free consultation from some of the civil rights attorneys listed by location at
http://lawyers.findlaw.com/lawyer/practice/Civil-Rights

This would be an appropriate situation in which to contact your Congressman and ask him or her to either sponsor what is called a private bill, or amend the US Code to specifically allow claims by descendants of Crossroads vets or all Atomic vets.

The Courts treat the US government as having sovereign immunity other than as specifically waived, as in the FTCA, see
http://www.fas.org/sgp/crs/misc/95-717.pdf

Based on the above it will be difficult to prevail in federal court (other than in Rhode Island), but some lawyers like taking on difficult cases, so I urge you to follow up with a civil rights lawyer and contact the NAAV and ask if it might be planning a class action or working on amending the US Code.

I hope this information is helpful.
N Cal Atty and other Military Law Specialists are ready to help you
Expert:  N Cal Atty replied 6 years ago.
Thank you for accepting my answer.

Related Military Law Questions