Is there some Middle Ground with this Feres Doctrine thing?

2021-04-26T13:35:18-04:00

Look I know there are false claims of all sorts, and crooks trying to steal and get money by falsely claiming injury. The court system with all its discovery power and review will weed out false claims more accurately than some administrative command action to investigate crimes committed by service members on other service members. The command is not set up to be like a court system built efficiently for such review to find fact from fiction. To remove someone from that just because they are in the military well that is some interesting stuff.

Considering the United States Military is all about protecting classes of people such as religion race sexual identity etc, then it is not to much farther a stretch to allow and fuse the civil and federal and military system to review all these things. Infact they have been reviewed in federal court for the equal protection of rights in such things as sex race and religion. So it is perplexing the fight or expansion with the Feres.

The idea that the VA was going to take care of you might be just a dream to a lot of guys who went there in desperation like I did. Part only 1 part of my history was a MST type instance a guy tried to corner me in berthing on the ship and get sexual. I ran into the galley and screamed like a chicken. The guy was gone I think a month or 2 later. I was like this dude knew I had a fiancé and all of a sudden out of thin air this happened. The VA Oakland stated on paper that MST was hard to prove and even "HARDER" to prove if you had a reserve enlistment. I had a reserve enlistment. Man.

The Feres doctrine is a judicially-created scheme barring claims by
military service members against the United States that are deemed to have
occurred "incident to service. '123 The Feres doctrine has been publicly
criticized in the past, with the New York Times writing ". . . the 'incident to
service' provision routinely cited as an impediment best fixed by Congress
is nowhere to be found in federal statute, making legislative reform
something of an existential puzzle."' 24 This doctrine exempts the United
States government from liability for claims that it would otherwise be
accountable for under the Federal Tort Claims Act (FTCA), which waives
the United States' sovereign immunity for claims against a government
employee sounding in tort. Under the Feres doctrine, service men and
women are essentially denied the same opportunities for recovery as their
civilian counterparts for similar injuries. 125
In 1950, the Supreme Court in Feres v. United States created an
exception to the FTCA.1 26 Feres involved three separate cases in which
military officials were sued by the executors of estates of active duty
military personnel for damages on actions grounded on negligence under
the FTCA. 127
The Feres doctrine is a judicially-created scheme barring claims by
military service members against the United States that are deemed to have
occurred "incident to service. '123 The Feres doctrine has been publicly
criticized in the past, with the New York Times writing ". . . the 'incident to
service' provision routinely cited as an impediment best fixed by Congress
is nowhere to be found in federal statute, making legislative reform
something of an existential puzzle."' 24 This doctrine exempts the United
States government from liability for claims that it would otherwise be
accountable for under the Federal Tort Claims Act (FTCA), which waives
the United States' sovereign immunity for claims against a government
employee sounding in tort. Under the Feres doctrine, service men and
women are essentially denied the same opportunities for recovery as their
civilian counterparts for similar injuries. 125
In 1950, the Supreme Court in Feres v. United States created an
exception to the FTCA.1 26 Feres involved three separate cases in which
military officials were sued by the executors of estates of active duty
military personnel for damages on actions grounded on negligence under
the FTCA. 127

Second, the Court assumes service members and veterans already
have access to "generous statutory disability and death benefits... for
service related injuries. " "' The Feres Court noted that the primary purpose
of the FTCA was to provide remedies for those who had none.'3 8 Because
service members and veterans already have access to an extensive disability
benefits program, the Court in Feres saw no reason why the FTCA should
provide them with additional remedy. 39 However, remedy for
constitutional claims is not provided for in the Veterans' Benefit Act, 4 °
and, as discussed above, many veterans who suffer sexual assault are
denied disability benefits for failure to prove a service-connection.
The Court has increasingly deferred to the military for the
adjudication of military affairs, moving away from judicial review of the
same. Most significantly, Chappell v. Wallace expanded the Feres doctrine
beyond the realm of tort claims into most aspects of military service-related
claims, including claims with constitutional implications.' 4 ' Chappell,
while not a case of military sexual trauma, involved five African-American
soldiers who alleged they were overlooked for "desirable duties" on the
basis of race.'42 The plaintiffs in Chappell were denied the right to sue the
government for their constitutional tort claim, which, up until that point,
was permitted by Bivens. Bivens v Six Unknown Named Agents of Fed. Bur.
of Narcotics allowed claims against federal employees for damages when aplaintiff's constitutional rights had been violated. 4 3 The court, in denying
plaintiffs' claims, articulated that even though suits for damages against
federal officials, while not expressly authorized by Congress, have been
allowed by Bivens in the past,144 such suits were not permissible when
"special factors counseling hesitation" were at play.'45 These "factors"
include whether the FTCA applied in cases where the remedy could be
extended to a serviceman who suffered injury incident to service where, in
other circumstances, would be "an actionable wrong."1'4 6 The court then
used reasoning from Feres, in which, although a technical reading of the
statute may appear to allow tort claims by a soldier against the United
States for injuries acquired during service, Congress did not intend for the
government to be subject to those claims by military personnel. 4 ' Most
notably, the Chappell court held "[a]lthough this case concerns the
limitations on the type of non-statutory damage remedy recognized
in [constitutional claims], rather than Congress' intent in enacting the
Federal Tort Claims Act, the Court's analysis in Feres guides our analysis
in this case."' 48 Effectively, the Chappell court applied FTCA and Feres
doctrine principles to a constitutional claim despite the fact that both the
FTCA and Feres doctrine are frameworks for analyzing claims seated in
tort.