This is what we need to be aware of if we are truly intent on supporting the troops.

If this concerns you then please contact your congressional representative and demand this Feres Doctrine be overturned.

Military Families
Battle Feres Doctrine

By Dale Frost Stillman

Imagine your son is taken to a hospital where he is first treated for the wrong injury, then misdiagnosed and ultimately declared brain dead before you can even reach his side. Now imagine being told that you cannot hold accountable those responsible for your son’s death because a 55-year-old law, called the Feres Doctrine, protects them.
That is the situation facing the family of Marine recruit Justin Haase who died in December 2001 at the age of 18 after contracting a severe case of bacterial meningitis at a Marine boot camp on Parris Island, South Carolina. Military doctors treated Haase with penicillin despite an allergy to the medication.

Compounded errorsBecause of his allergy to penicillin, Haase was supposed to receive a substitute drug for the dose of antibiotics that is routinely given to new recruits to prevent infections. He did not. According to newspaper accounts, as his time at boot camp continued, Haase suffered from severe headaches and vomiting. A military medic did not take his temperature and did not contact a doctor. Instead, the medic instructed Haase to sit in a van where he cried in pain. He was then ordered to stay in bed, but when he awoke Haase was incoherent. His drill instructor sent him back to bed and called a senior drill instructor, who then called 911 but incorrectly reported that Justin had “taken a spill on the obstacle course.” Haase was finally taken to a naval hospital where he was initially treated for a head injury. The doctor suspected a bacterial infection because of Justin’s temperature, but did not take appropriate tests or begin antibiotic treatment right away. It would be two hours before Haase would receive the correct test that determined he was suffering from bacterial meningitis, which is when he was given penicillin. He suffered severe brain trauma and was pronounced brain dead before his family arrived.Because Haase was in Marine boot camp, his family is unable to sue for the negligence that caused his death.

The Feres Doctrine prevents military service members and their families from suing the military, even for non-combat related deaths. LeRoy Wulfmeier, the attorney for the Haase family, told People magazine “If he was civilian and he went into a non-military hospital, he would have one hell of a lawsuit.”Origin of the Feres DoctrineThe Feres Doctrine is named after Lt. Rudolph Feres, who died in a barracks fire in 1947. Feres’ widow attempted to sue the Army, claiming negligence because it allowed her husband to be quartered in an unsafe barracks. The barracks had a defective heating plant and authorities failed to maintain an adequate fire watch, she claimed. The doctrine also encompasses two other cases from that time period. One involved an Army serviceman who sued for damages after an 18-x-30 inch towel had to be removed from his abdomen. The towel, which was stamped “Medical Department of the U.S. Army,” was left behind after an abdominal surgery that was performed at an Army hospital eight months previously. The other case also involved medical malpractice where the patient, an active duty officer in the Army, died at the hands of what the lawsuit alleged was “an unskilled Army surgeon.” With the Feres Doctrine, the U.S. Supreme Court declared in 1950 that active duty servicemen and their estates could not recover money against the U.S. government. As a result, all three of the pending cases were dismissed.

The Feres Doctrine is an exception to the Federal Tort Claims Act of 1946, which states that the United States is liable for personal injuries and medical malpractice “in the same manner as a private individual under like circumstances.” According to the Feres Doctrine, the Federal Tort Claims Act “did not apply to servicemen,” because the government is not liable for injuries to servicemen where the injuries “arise out of or are in the course of activity incident to their service in the Armed Forces.” Challenge to FeresWith the protection of total immunity, the Feres Doctrine has been surrounded by controversy since its inception. The primary objection is that as a result of Feres a member of the armed services loses many rights that non-military citizens enjoy, such as the right to seek redress of grievances or compensation, which is guaranteed in the U.S. Constitution. Because of the Feres Doctrine, service members who have been injured while on the job are not eligible to sue their superiors for negligence or malpractice.

Under current law, the families of honorable servicemen like Justin Haase have no recourse against what some consider the incompetence of superiors. Freehold attorney Michael Detzky, a former chair of the New Jersey State Bar Association’s Military Law and Veteran’s Affairs Committee, believes physicians practicing in military hospitals should be held to the same standards as private citizens, but he noted that the courts are reluctant to get involved in military decisions, that would include overturning the Feres Doctrine. “Soldiers should not feel as if they are second-class citizens,” Detzky maintains. “Many restrictions are placed on soldiers that the private citizen does not have to endure. If they use foul language in the military, they are subject to court-martial and they can’t just quit if they feel like it. Yet they don’t have the same recourse as private citizens if they are wronged,” said Detzky, who has served in the U.S. Naval Reserves for 22 years and is a captain.

The Feres Doctrine was last challenged and reviewed by the U.S. Supreme Court in 1987 in United States v. Johnson. That case involved Lt. Commander Horton Johnson, a helicopter pilot for the U.S. Coast Guard, who was killed during a rescue mission. Because of poor weather conditions, Lt. Johnson requested radar assistance from the Federal Aviation Administration (FAA). The FAA assumed radar control over the helicopter, and shortly after, it crashed into a mountain. His widow sued the U.S. government on the grounds that the FAA, a civilian agency of the federal government, was negligent and caused the death of Lt. Johnson and his flight crew.

The U.S. Supreme Court reaffirmed the Feres Doctrine with a 5-4 vote in the Johnson case.“Because Johnson was acting pursuant to standard operating procedures of the Coast Guard, the potential that this suit could implicate military discipline is substantial,” U.S. Supreme Court Justice Lewis Powell wrote in his majority opinion. “The circumstances of this case thus fall within the heart of the Feres Doctrine as it consistently has been articulated.” In his dissenting opinion, Supreme Court Justice Antonin Scalia wrote, “Had Lt. Commander Johnson been piloting a commercial helicopter when he crashed into the side of a mountain, his widow and children could have sued and recovered for their loss. But because Johnson devoted his life to serving in his country’s Armed Forces, the Court today limits his family to a fraction of the recovery they might otherwise have received.” Justice Scalia went on to say, “Feres was wrongly decided and heartily deserves the widespread, almost universal criticism it has received.

“ Other challenges/other familiesThere continue to be challenges to the Feres Doctrine today. In August 2002, Pfc. Jeremy Purcell was killed when a Marine sergeant shot him with live ammunition during a routine training exercise at Camp Pendleton, California. The sergeant received a one-year sentence in jail for negligent homicide and also received a bad-conduct discharge from the Marines. An investigation of the incident revealed problems with the way ammunition was handled during training exercises. Purcell’s parents are intent on holding the military accountable for their son’s death. Jon Purcell, Jeremy’s father and a 20-year Navy veteran who will represent himself, charges gross negligence and seeks a reversal of the Feres Doctrine. Purcell, according to an article in Marine Corps Times, believes “the finding of negligence removes the Marine Corps’ protection under Feres.”Most recently, in February 2005, another Marine recruit at Parris Island, Jason Tharp, drowned during the combat water survival training phase of boot camp. The day before he died, footage of Tharp’s drill instructor physically abusing him was shot by a local NBC affiliate. The footage was shown on the Today Show 10 days after his death. The drill instructor was suspended as a result of the incident along with four other Marines who had knowledge of the incident but did not report it. Pending further investigation by the Navy, John Tharp, Jason’s father, is considering filing a wrongful death suit against the Marines.

Fighting for reformCongressman Barney Frank of Massachusetts introduced legislation in the U.S. House of Representatives in 2001 that would amend the Feres Doctrine to allow military families to seek redress for medical malpractice, making military doctors accountable for their actions when not in wartime. Frank has introduced this legislation many times and the bill has always died in the U.S. Senate.In October 2002, Senator Arlen Specter of Pennsylvania chaired hearings on the Feres Doctrine before the U.S. Senate Judiciary Committee. While many people who spoke at the hearings made impassioned pleas for abolishing or modifying the Feres Doctrine, Rear Admiral Chris Weaver defended it. In his testimony, Admiral Weaver said that the Feres Doctrine is important for maintaining good order and discipline in the military.“Allowing service members to bring suits in federal court against their chain of command will interfere with mission accomplishment and adversely affect our operational readiness,” Admiral Weaver said. “The military has long been recognized as a ’specialized community’ requiring demands and responsibilities far different from its civilian counterpart. The impact of litigation on this specialized community would undermine trust not only among individual service members, but also their superiors and officers throughout the chain of command,” he added. James Smith, a Metuchen attorney and member of the NJSBA Military Law and Veterans’ Affairs Committee, also believes that the Feres Doctrine should remain as is, noting that service people are provided with a generous disability pension similar to workers’ compensation if they are injured. Will the pending cases have an impact on overturning the Feres Doctrine? Detzky said it is hard to predict what the U.S. Supreme Court will do, but so far they have declined to revisit the Feres Doctrine.  

 I found this in the Military Officers Association of America home page. This will have an adverse affect on military dependent spouses and children. While our troops are fighting the wars that are going on this is how they are being “supported”.  When a soldier’, sailor’s, marine’s or airman’s family member needs medical care they will not get the help they need.

 How can our troops do their job effectively if their family members are not being provided the medical care the troops pay for?  (in many more ways than one)

 If you find this as offensive as I do, write your congressional representative and demand this not be allowed to happen to our service members or their spouses and children. 

     Stop the Coming Medicare/TRICARE Cut
 

MOAA’s Director of government relations, Colonel Steve Strobridge (USAF-Ret), joined four American Medical Association leaders in speaking at a
Washington press conference on Sept. 13 to urge Congress to act now to reverse the 5.1% cut in Medicare and TRICARE payments to doctors scheduled to take effect in January.

With Congress due to recess at the end of this month, time is running out to repeal the law that requires the cuts.

The AMA leaders said that, if these cuts go into effect, thousands of doctors will be forced to stop taking Medicare and TRICARE patients rather than operating their offices at a loss. Medicare and TRICARE are virtually the lowest-paying insurance plans in the country and typically pay doctors 20% to 30% less than commercial plans.

“The military community’s number one health care problem is finding doctors who will accept TRICARE,” said Strobridge. “That’s particularly true for Guard and Reserve families, retirees, and survivors who live in areas where there isn’t a large military population.”

“Reducing payment rates even further could have a devastating effect on health care access for military beneficiaries. When we send our service members in harm’s way, the last thing they should have to worry about is whether their families will be able to find a TRICARE doctor, or whether their current doctor will stop seeing them.”

“We must make sure Medicare and TRICARE provider payments don’t fall even further behind reasonable standards that are recognized everywhere but in current law.”

Please help this cause by visiting http://capwiz.com/moaa/home/ and clicking on the “Reverse Medicare/TRICARE Payment Cuts” link to send your legislators a MOAA-suggested message on the urgency of immediate action.

Let’s try to show some true support of our troops and stop paying only lip service to the idea.

Kevin M. Benderman

September 23, 2006

New York City’s Reservists Are Asked to Return Iraq Pay

By ANDY NEWMAN

When they were called up for military service in the wake of 9/11, hundreds of uniformed city workers in the Reserves faced the suspension of their city health and pension benefits. The city offered them an option: it would keep paying their salaries and continue their benefits, but when they returned they would have to repay the city their city salary or their military pay, whichever was less.

On its face, the offer made sense. And many reservists had only a few days to get their affairs together before shipping out — hardly enough time to consult accountants. Nearly all took the deal. As the war dragged on, more than 1,600 city employees, mostly police officers, signed up for the benefits program.

Now the bills from the city are coming due, for far more than many veterans imagined they would have to pay — as much as $200,000 — and often for more money than they ever received.

The city is demanding that the veterans repay their gross salaries, even though they never saw about a third of the money, which went for taxes and other deductions. The commissioner of administrative services, Martha K. Hirst, said veterans should be able to get back the difference between gross and take-home pay by amending their tax returns. But several tax accountants said the city had created an accounting quagmire.

David Gitel, a tax accountant in Manhattan, said that if the employees paid the money back over several years — which many will have to do — rather than in a lump sum, they could lose thousands of dollars in income-tax and social security payments.

“It’s an interesting experience,” Mr. Gitel said.

For now, the Police Department, which waited as much as four years to begin asking for the money back in the spring, is stepping up its collection efforts. On Thursday, hundreds of officers received letters in their pay envelopes threatening legal action if they did not make repayment arrangements within 15 days.

A city official, who was unwilling to be identified lest he incur his colleagues’ anger, gave an explanation for the delay. “People have been talking about it here for some time, about getting around to doing it,” he said. “It’s probably the hero thing. Why make a top priority of telling somebody to give back money when they just went off to war?”

Under the terms of the deal, nontaxable military housing and food allowances also count as military pay. Those allowances can nearly double military pay, in some cases making it more than city pay. Many veterans who did not read the fine print said they thought they would have to repay only their modest military take-home base salary.

On Monday, the City Council will consider a resolution by Councilman Michael E. McMahon of Staten Island to ask Mayor Michael R. Bloomberg to stop counting military allowances as income.

Assistant Police Chief Michael Collins said that after the letters went out on Thursday, many officers contacted the department to begin repayment. The department hopes to recover more than $15 million, he said.

Other officers said the system needed to be overhauled. “We have to change it,” Detective David Goodman, treasurer of the Police Department post of the Veterans of Foreign Wars, said at a gathering on Tuesday of about 50 officers at the Army base at Fort Hamilton in Brooklyn, “so that when you come back you’re not paying money for having gone to war for your country.”

Detective Goodman added that since the war effort relies increasingly on reservists, it behooved the city to make enlistment attractive.

Ms. Hirst said the city was “looking at” the possibility of not counting military stipends as income, but she thought that in any case the benefits program was an excellent one.

“The city works out very, very friendly repayment agreements,” she said.

Many officers said the four-year delay had reinforced their impression that the city did not intend to come after them for the money at all.

Officer Jake Marino, a five-year police veteran who was in the Military Police in Iraq in 2004, recalled that while he was preparing to go, his contact in the department’s military-leave office told him, “As far as paying back the money, I don’t think you have anything to worry about.”

Many officers put one of their two salaries right in the bank, and some used it to make up for the loss of overtime pay. Others who started out saving the excess began to spend it when they did not hear from the city as time went by.

“Like most middle-class Americans,” said Michael Donohue, a police sergeant, “you get a windfall; you fix the roof and the sidewalk and pay off credit-card debt.” Sergeant Donohue, a command sergeant major in the Army Reserves who spent much of last year at Abu Ghraib, estimated that he owed the city $100,000.

The benefits plan was intended to let employees keep the larger of the two salaries. An officer paid $80,000 by the city and $60,000 by the military would owe the city $60,000 upon his return. And an employee paid $80,000 by the military and $60,000 by the city would also owe the city $60,000.

Administrative Services officials said that employees who pay the money back in a lump sum get an amended federal W2 tax form for the year they drew two salaries and would be able to get a full refund of the excess taxes they paid.

Employees who pay the money back by payroll deduction, though, could deduct the money from their income only in the year in which they pay it back, officials said.

This causes two problems, said Mr. Gitel, the tax accountant. One is that an employee would probably be in a higher tax bracket during the year she drew two salaries than when she paid the money back. The other problem, Mr. Gitel said, was that there was no way for the employee to get back the extra Medicare and Social Security contributions she made while drawing two salaries. These shortfalls could easily total $10,000, he said.

An Administrative Services official said last night that the city had just obtained commitments from accounting firms to provide free advice to veterans.

The city could have set its plan up differently. The state has a similar plan for its employees, but it pays them the difference, if any, between their military and state salaries, so they do not have to pay anything back. The state employees’ contributions to their pension accounts are not made while they are on leave, but the much larger state contribution is still made.

Laurence A. Levy, deputy counsel to Mayor Rudolph W. Giuliani in 2001, said the city’s method seemed a better way to protect the employees’ benefits. “In Operation Desert Storm, many of the families didn’t get health benefits, and it caused tremendous financial hardship,” he said. “We wanted to keep them whole.”

Sergeant Donohue said he appreciated the city’s good intentions. “We’re not asking for a pity party or a handout,” he said. “But maybe there’s a little more reasonable way for them to be approaching this.”

If this makes you as mad as it does me then contact the New York City city council and the mayor an let them know what you think of this support of our troops.

Kevin M. Benderman

 I wrote this a while back and never posted it. I think it is as pertinent now as then. Although I must admit many more people than I thought are stading up to what is happening in our country.  Have heart, America, all is not lost to people who do not care about this country as a whole.  WE THE PEOPLE are going to be heard whether or not the ones that choose not follow our constitution want to hear. 

I AM WRITING THIS TO RECOGNIZE THE SACRIFICES OUR TROOPS HAVE MADE AND TO SUPPORT THEM AS THEY FACE ONE OF THE MOST DIFFICULT PERIODS IN RECENT HISTORY. THERE ARE MANY DIFFERENT GROUPS THAT HAVE ORGANIZED UNDER THE BANNER OF SUPPORTING THE TROOPS AND THE ONLY THING THEY SEEM TO WANT TO TELL THE SOLDIERS AND OTHER SERVICE MEMBERS IS TO RUN FROM WHAT THEY ARE NOW FACING. I MUST SAY THAT TELLING THEM TO TURN THEIR BACK ON THE COUNTRY AND TO RUN OR GO A.W.O.L IS THE WRONG ANSWER. I BELIEVE THAT STAYING AND STANDING FOR WHAT YOU KNOW TO BE RIGHT IS THE WAY TO DEAL WITH THE ISSUES FACING OUR COUNTRY TODAY.

 THERE ARE SOME WHO FEEL THIS MAY BE TOO DIFFICULT TO HANDLE AND I CAN PERSONALLY TELL THEM IT IS A DIFFICULT DECISION TO FOLLOW YOUR CONSCIENCE WHEN YOU KNOW IT IS THE RIGHT THING TO DO. I SPENT 13 MONTHS OF A 15-MONTH SENTENCE IMPOSED BY THE COMMAND GROUP AT FT. STEWART, GA. FOR DOING WHAT I KNOW TO BE THE RIGHT THING. IF WE TRULY WANT TO MAKE SOME POSITIVE CHANGES FOR OUR NATION THEN WE ARE GOING TO HAVE TO STEP OUT OF OUR COMFORT ZONE.

THERE ARE MANY ARE ALSO PORTRAYING THIS AS A WAY TO END ALL WARS. THIS POSITION DISPLAYS DISRESPECT TO OUR SERVICE MEMBERS BECAUSE WE ARE IGNORING OUR RESPONSIBILITIES AS CITIZENS. IF WE EXPECT THE SOLDIERS TO RUN FROM OUR LAWS WHEN WE SHOULD BE STANDING UP FOR THEIR CONSTITUTIONAL RIGHTS THEN WE ARE ABDICTATING OUR RESPONSIBILITIES TO THE SERVICE MEMBERS.WHAT WE SHOULD BE DOING IS ORGANIZING OURSELVES INTO WELL-MANAGED GROUPS OF UNITED STATES CITIZENS WHO ARE WILLING TO ACCEPT THE RESPONSIBILITY GIVEN TO US BY THE UNITED STATES CONSTITUTION. THAT RESPONSIBILITY WAS NOT GIVEN TO US LIGHTLY AND WE SHOULD NEVER HAVE LET IT BE TAKEN FOR GRANTED. BUT WE HAVE AND IT IS UP TO US TO STAND UP AND TAKE BACK WHAT IT IS OURS.

I SEE MANY PEOPLE WHO CLAIM TO HAVE THE SERVICE MEMBERS’ BEST INTERESTS IN MIND WHEN THESE TYPES OF STATEMENTS ARE BEING MADE. I THINK THESE PEOPLE HAVE MISSED THE MARK WHEN IT COMES TO UNDERSTANDING THAT THE MILITARY IS UNDER CIVIL CONTROL AND UNDER THE CONSTITUTION, “WE THE PEOPLE” ARE THE CIVIL AUTHORITY.WE CANNOT EXPECT THE SOLDIERS TO DO THE JOB OF BEING WATCHDOGS OVER WHAT OUR GOVERNMENT IS DOING. WE SHOULD NEVER LET ELECTED OFFICIALS ENGAGE IN ACTIVITIES THAT BRING ABOUT THE CONDITIONS THAT WOULD PUT OUR MILITARY PERSONNEL INTO HARM’S WAY FOR TRANSIENT OR MISGUIDED REASONS.

I WOULD ALSO LIKE TO ADDRESS THE ISSUE OF CERTAIN INDIVIDUALS WHO WEAR THE FLAG UPSIDE DOWN AS A WAY TO DISPLAY THEIR OPINIONS OF HOW THINGS ARE BEING DONE BY SOME MEMBERS OF OUR GOVERNMENT. I WOULD LIKE TO REMIND THOSE WEARING THE FLAG THIS WAY THAT THIS COUNTRY IS MUCH MORE THAN ONE OFFICE HOLDER. THIS COUNTRY IS THE TOTAL EFFORT OF ALL LIVING HERE NOW AND ALL THOSE WHO HAVE COME BEFORE US. JUST BECAUSE SOME INDIVIDUAL DECIDES TO DO THINGS DETRIMENTAL TO THE NATION DOESN’T MEAN WE SHOULD DISRESPECT THE IDEALS THE COUNTRY WAS FOUNDED ON.  IT IS UP TO US TO ENSURE THAT THE GOVERNMENT, WHICH IS MADE UP OF A GROUP OF EMPLOYEES OF THE UNITED STATES, IS NEVER VIOLATING THE PRINCIPLES OF THE UNITED STATES CONSTITUTION. IN ORDER FOR THAT TO HAPPEN, THE AMERICAN PEOPLE ARE GOING TO HAVE TO BREAK OUT OF THEIR APATHY AND START PARTICIPATING MORE ACTIVELY IN WHAT OUR GOVERNMENT IS DOING.

WE MUST ENSURE THAT OUR GOVERNMENT REMAINS ACCOUNTABLE TO US AND THAT IT REMAINS OPEN AND TRANSPARENT SO THAT WE MAY SEE WHAT IS BEING UNDERTAKEN BY OUR ELECTED REPRESENTATIVES. WE HAVE THE INHERENT RESPONSIBILITY AS UNITED STATES CITIZENS TO DO SO.

I WOULD LIKE TO CLOSE THIS STATEMENT WITH A QUOTE FROM JOHN F. KENNEDY,

“The very word ‘secrecy’ is repugnant in a free and open society; and we are as a people inherently and historically opposed to secret societies, to secret oaths and to secret proceedings. We decided long ago that the dangers of excessive and unwarranted concealment of pertinent facts far outweighed the dangers, which are cited to justify it. ”

John F. Kennedy, 27 April 1961

 NEVER HAS SUCH A STATEMENT BEEN MORE RELEVANT OR NEEDED IN OUR COUNTRY AS IT IS NOW. 

                                                                                                                                                                                   Kevin M Benderman