I had a similar thread below dealing with venue of a service members claims, but I will initiate this thread to discuss the scope of a case pertaining to recovery by service members.
The case I would like to use as an example is one where a service member, a part time national guardsman ( one weekend a month and two weeks a year training ), was told or ordered to show up alone while off part time duty during a time of national SEQUESTRATION ( no funds for training / all training cancelled ), and perform an APFT or physical fitness test( PT Test ). Only the off duty national guardsman and two of his national guard supervisors that he had complained to previously were there to grade the part time guard member's test. The guardsman was failed on the fitness test and told he would not be able to retake the fitness test which would result in him being FLAGD( unable to re enlist ). The test was givin' unlawfully under no lawful military orders, and off of any military base. Furthermore during sequestration and against the US Anti Defeciancy ACT . To say the least this was not a record Physival Fitness Test, although the Guardsman's supervisors recorded it as a record failed PT Test.
This action the recorded Failed PT Test resulted in a FLAG preventing the guardsman from re enlisting the next month when his ETS date came about. After the guardsman was discharged the two national guard supervisors retaliated by falsifying the discharged guard members re enlistment code to prevent him from re entry and falsified his NCOER or NCO evaluation to make it near impossible for him to gain a leadership position if he ever were to return to the military.
I have found a case that will support the no FERES bar for suit AFTER the discharge, but at this point I would like to find any Supreme Court or Corcuit Court findings that state a national guard supervisor is not immune from suit per FERES for giving unlawful " orders" to an off duty guard member ( state employee ) . I all fairness this in my thoughts would be akin to a National Guard Supervisor calling an off duty /off drill Guard member and tell them to go to an Army Surplus and confiscate Camoflauge Uniform Pants. Would this be considered " incident to service " and be barred from suit if the guardsman were to have been arrested or injured in the commission of this unlawful order?
Please cite Davidson v United States for a more in depth example :
http://ift.tt/1QyqzTn
The case I would like to use as an example is one where a service member, a part time national guardsman ( one weekend a month and two weeks a year training ), was told or ordered to show up alone while off part time duty during a time of national SEQUESTRATION ( no funds for training / all training cancelled ), and perform an APFT or physical fitness test( PT Test ). Only the off duty national guardsman and two of his national guard supervisors that he had complained to previously were there to grade the part time guard member's test. The guardsman was failed on the fitness test and told he would not be able to retake the fitness test which would result in him being FLAGD( unable to re enlist ). The test was givin' unlawfully under no lawful military orders, and off of any military base. Furthermore during sequestration and against the US Anti Defeciancy ACT . To say the least this was not a record Physival Fitness Test, although the Guardsman's supervisors recorded it as a record failed PT Test.
This action the recorded Failed PT Test resulted in a FLAG preventing the guardsman from re enlisting the next month when his ETS date came about. After the guardsman was discharged the two national guard supervisors retaliated by falsifying the discharged guard members re enlistment code to prevent him from re entry and falsified his NCOER or NCO evaluation to make it near impossible for him to gain a leadership position if he ever were to return to the military.
I have found a case that will support the no FERES bar for suit AFTER the discharge, but at this point I would like to find any Supreme Court or Corcuit Court findings that state a national guard supervisor is not immune from suit per FERES for giving unlawful " orders" to an off duty guard member ( state employee ) . I all fairness this in my thoughts would be akin to a National Guard Supervisor calling an off duty /off drill Guard member and tell them to go to an Army Surplus and confiscate Camoflauge Uniform Pants. Would this be considered " incident to service " and be barred from suit if the guardsman were to have been arrested or injured in the commission of this unlawful order?
Please cite Davidson v United States for a more in depth example :
http://ift.tt/1QyqzTn
Discharge From Service: Involuntary Discharge Due to Whistle Blower Retaliation, Feres Bar of Recovery
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