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Thread: ERB Lawsuit Dismissed

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    Senior Member Stalwart's Avatar
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    ERB Lawsuit Dismissed

    It looks like the Sailors' appeal was dismissed by the Circuit Court of Appeals on all 3 issues:

    1. Challenge to the authority of Navy to conduct the Enlisted Review Board.
    2. Challenge that the navy violated procedures by failing to provide Appellants proper notice or an opportunity for a hearing at the time of their discharges.
    3. Challenge that the Navy violated due process because Appellants were not told why they were discharged, e.g., for quota, performance, or other reasons. (one of the arguments here was that the real reason for the ERB was to allow the Navy to fire sailors nearing early retirement.)

    http://www.cafc.uscourts.gov/images/...7-9-2014.1.PDF

    The Sailors' attorney has said he will file to have the case heard by the Supreme Court; I will be interested to see if that happens.
    The most important six inches on the battlefield is between your ears.

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    Senior Member BURAWSKI's Avatar
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    The odds are against them, unfortunately. Historically, lawsuits of this type are usually dismissed. I remember a lawsuit that was filed on behalf of the POW's during the Gulf War in 1991 which was dismissed under the grounds of a lack of jurisdiction (they were suing for damages against the Iraq Government). I know, it isn't exactly the same type of case but just an example. It doesn't mean that it won't result in a favorable outcome on their part, but I don't think the odds are good.

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    Quote Originally Posted by BURAWSKI View Post
    The odds are against them, unfortunately. Historically, lawsuits of this type are usually dismissed. I remember a lawsuit that was filed on behalf of the POW's during the Gulf War in 1991 which was dismissed under the grounds of a lack of jurisdiction (they were suing for damages against the Iraq Government). I know, it isn't exactly the same type of case but just an example. It doesn't mean that it won't result in a favorable outcome on their part, but I don't think the odds are good.
    I agree that the odds (ie. law) are definitely not on their side. From the outset it seemed like the Navy had legal authority to conduct the board and separate those based on the precept and the criteria they put forward. That is not in any way me saying I think it makes me proud, happy or [anything positive] that 3k + Sailors were separated either. But looking at the law (I am no lawyer, but …) it seems like the case was a huge uphill battle and I wonder if the lawyer in the case (who took a $300 dollar retainer from the roughly 300+ litigants) really thought they had a case or was this a quick and (win or lose) relatively easy $90,000?

    My overall impression is that the Navy did a very bad job of explaining what the ERB was going to be and what the criteria for the board was. We had two Sailors on my ship that were selected to separate and (in talking to them) they had the impression that they had 'good records' and had no worries. At the same time, I have talked to some people and the feedback from some was that a SURPRISING number of records were obviously incomplete -- but the responsibility for ensuring the accuracy of the record is on the individual. Some other feedback points that I got on ERB but likely apply to all boards:

    1. Make sure your record has everything in it, if something is missing ... email it directly to BUPERS. Boards don't vote to promote you -- chances are none of them know you, they vote on your record.
    2. "Big fish, little pond syndrome" -- a #1 EP / Sailor of the Year at a small 35 member command may not compare as well to the #1 MP from an Aircraft Carrier.
    3. Being Sailor of the Year is awesome, but if you were SoY 4 years ago, then PCS'd and have stagnated in your performance that reflects poorly.

    I have sat on two separate boards at BUPERS as a recorder, one O5 board and one Chief's Board and know how the system works. As far as ERB, some of the arguments made my some of those separated are rather silly though and show a lack of knowledge of the board process:

    -ERB specifically targeted Sailors in the EFMP, since their family members incur more expensive medical costs -- wasn't the case at all. EFMP status was not even briefed at the board; doing so would be a violation of the board process and the board monitor from BUPERS would stop that (I saw it happen on a different issue at the O5 board – the board monitor (O5) completely shut down an O6 who was trying to brief something not in the record.)

    -ERB specifically targeted Sailors before they could become eligible for early retirement -- on one hand, that does seem to be exactly the point of the ERB -- separating stagnated Sailors in specific ratings. On the other hand, some selected by ERB were close enough that they were allowed to retire early ... so if you were at 12 or 13 years, yes the point was to prevent you from retiring.

    -ERB selected personnel at random. That just seems pretty out there. I would also think if that was the case, the board wouldn't have taken as long.
    The most important six inches on the battlefield is between your ears.

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    I guess my posts caused some speculation that I was a board member.

    For the record, no ... I wasn't. I have talked to people who were & who shared with me what they could based on the NDA.

    -ERB specifically targeted Sailors before they could become eligible for early retirement -- on one hand, that does seem to be exactly the point of the ERB -- separating stagnated Sailors in specific ratings. On the other hand, some selected by ERB were close enough that they were allowed to retire early ... so if you were at 12 or 13 years, yes the point was to prevent you from retiring.
    The point of that was that .. yes, people who were stagnated or had performance issues were (intended to be) kept from retirement.
    The most important six inches on the battlefield is between your ears.

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