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P. Simmons
P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 34525
Experience:  Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
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Is it possible to sue the military for willful due process

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Is it possible to sue the military for willful due process violations? Six years ago, I was set up by the BN CDR/Group CDR/RRC CDR (these things happen all the time in the Army). I filed FOUR ART 138s (all unprocessed), FOUR IG complaints (all unproccessed), three Commander's Inquiries (Army refuses to give me the results on same). I meet with the RRC Commander who makes one promise after another (but fails to tell me he's retiring in two weeks) . I escalate to USARC and USARC tells me the Army has closed my file---go ahead and sue us. Click!!! I then write the SEC DEF and SEC Army and ask: "USARC wants me to sue you guys---are you cool with that"? Appearently not, as my phone is now ringing off the hook from USARC. LTG Stultz, USARC CDR, informs me 2 of my 4 yr old ART 138s have been located so he is returning them to me so I can re-sub them. I'm out of the Army/my scumbag CDRs are out of the Army. LTG Stultz, as GCMA, can't proffer redress this late; only denials. WTF?!!!Customer
Submitted: 8 years ago.
Category: Military Law
Expert:  P. Simmons replied 8 years ago.
Thanks for the chance to assist and sorry for this mess

It is actually not possible for service members to sue the military over incidents that occur while in the military. This is due to a supreme court case, many years back, called US v Feres.   You can read more about it here

So if you filed suit, the government would be able to halt the suit under this doctrine.

Sorry to bear bad news, but its best to know it up front.

You can report this to your elected representative, your senator or congressperson. They have the ability to inquire into the Army to find out what happened.

Please let me know if you have further questions; if so I will do my best to answer them. If not please hit the accept button, its the only way I get credit for my work.

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Customer: replied 8 years ago.
I've read Feres (1950) and it states the Military (ARMY) can not be sued for ACTS OF NEGLIGENCE occured during the course of normal military service. It states nothing about CRIMINAL MISCONDUCT. I understand the US Government has historically addressed Criminality claims by paying out monies to rape victims in Okinawa caused by US troops and has paid out monies to Iraqi villagers killed/wounded by US Marines. Answer my four questions and I will issue payment.

1. If the Army is no longer processing ART 138s, can I force them to do so via the Federal Courts? Isn't Failure to follow UCMJ a violation of federal law? [Title 10 U.S.C. Subtitle A, Part II, Ch47 SubCh [email protected]?]. Can I seek damages for same?

2. USARC (down to the BN CDR) Knowingly, willingly, purposefully and maliciously violated the UCMJ and AR 27-10 (16NOV05) Para 20.1-20.8 by depriving me of my due process rights. Worse, USARC CDR LTG Stultz is furthering the violation by ordering me to re-submit my 4 year old ART 138s four years after my submittal (he has no such authority to circumvent Fed Law or AR 27-10).

3. Since the Army blew the 90 day statute on my four ART 138s---isn't the government in default and thus has accepted all my claims because it didn't timely contest them? [Remember: The AirForce has no time limit to do ART 138s---the Army has 90 days!!!]

4. If I am barred by Ferres, Why did USARC originally tell me to go ahead and sue them under the Federal Torts Act?
I understand backpay torts are not barred by Ferres.
Expert:  P. Simmons replied 8 years ago.
Yes, your correct that Feres applies to negligence. But if you want to sue in court, as a citizen, that is the only suit available to you. Citizens did not originally have the ability to sue the government...that was due to the concept of sovereign immunity. But in US, the Federal Tort Claims Act (FTCA) allows citizens to sue the government for negligence in certain cases. So if there is a criminal complaint, that will have to be addressed by the commander of the individuals in question. That is why I recommend you contact your elected representative.

As for payments made to foreign nationals, that comes under the foreign claims act or the military claims act and will not apply in the us to your circumstances. Sorry for that.

To answer your question
1. You would not have standing to force "process" of the Art 138 complaint since you no longer are on active duty. More info on standing here

2. OK. Again, if there is criminal conduct, the commander will have to press criminal charges.

3. Again, once you left active duty, you no longer had standing on the Art 138 complaints

4. Backpay is a contract issue...not a tort. And just because someone in the army says "sue us" does not mean they have the authority to grant you authority to sue. Feres bars claims under the FTCA.
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