Brief History...
I was Medically Retired in May of 2015 for a spinal injury, at that time the Army levied a recoupment of DVA Disability Benefits against my INCAP pay, in the range of $16,000
Over the next two years the Sec. of Defense, and Sec. of the Army both gave new guidance that such recoupment is NOT allowed, DODI 1241.01, and Army Directive 2017-17 respectively. During that time I filed two appeals to DFAS to stop the wrongful action, both were denied never addressing the new rules.
Two years ago I filed a claim to stop the wrongful recoupment with the ABCMR. A few weeks ago I received notice that their Advisory (panel?), along with the Florida Army National Guard, and National Guard Bureau Office of General Counsel agreed that the recoupment was wrongful and recommended to the Board that relief be given. However they left the door open by stating that my wrongful recoupment predated the new rules, even so, the Advisory stated that the recoupment was wrongful according to the Law.
MY PROBLEM is this...
The 6 year Statue of Limitations for filing in the Court of Federal Claims is fast approaching (May 2021, 6 years after my Medical Retirement). If I file with the CFC now, not only will the legal costs be significant, but such a claim is almost certain to be REJECTED based on the fact an ABCMR ruling is pending.
It is my understanding that the CFC often reverts claims back down to the BCMR's to sort things out at the lower level. So if the lower level (ABCMR) is still underway, the CFC would not likely even hear the case.
But if I don't file with the CFC now, waiting on the ABCMR finding (which is likely to be in my favor, but there's a real possibility they can still find against me [according to the Board's own rules that they don't have to do what the Advisory recommends]), the CFC can use their Statue of Limitations Rule (6 years) to reject a claim if I delay.
MY QUESTION?
Can the 6 year Statute of Limitations for the Court of Federal Claims be extended (or waived) if still waiting on the ABCMR decision?
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I plan on seeking an Attorney for consultation, but I'd like to know before I go in if such a extension or waiver exists so I can pursue that route rather than face the financial burden of filing a CFC claim that will most likely just be denied. Want to avoid an EXPENSIVE Catch-22.
Thanks for any advice you might have...
I was Medically Retired in May of 2015 for a spinal injury, at that time the Army levied a recoupment of DVA Disability Benefits against my INCAP pay, in the range of $16,000
Over the next two years the Sec. of Defense, and Sec. of the Army both gave new guidance that such recoupment is NOT allowed, DODI 1241.01, and Army Directive 2017-17 respectively. During that time I filed two appeals to DFAS to stop the wrongful action, both were denied never addressing the new rules.
Two years ago I filed a claim to stop the wrongful recoupment with the ABCMR. A few weeks ago I received notice that their Advisory (panel?), along with the Florida Army National Guard, and National Guard Bureau Office of General Counsel agreed that the recoupment was wrongful and recommended to the Board that relief be given. However they left the door open by stating that my wrongful recoupment predated the new rules, even so, the Advisory stated that the recoupment was wrongful according to the Law.
MY PROBLEM is this...
The 6 year Statue of Limitations for filing in the Court of Federal Claims is fast approaching (May 2021, 6 years after my Medical Retirement). If I file with the CFC now, not only will the legal costs be significant, but such a claim is almost certain to be REJECTED based on the fact an ABCMR ruling is pending.
It is my understanding that the CFC often reverts claims back down to the BCMR's to sort things out at the lower level. So if the lower level (ABCMR) is still underway, the CFC would not likely even hear the case.
But if I don't file with the CFC now, waiting on the ABCMR finding (which is likely to be in my favor, but there's a real possibility they can still find against me [according to the Board's own rules that they don't have to do what the Advisory recommends]), the CFC can use their Statue of Limitations Rule (6 years) to reject a claim if I delay.
MY QUESTION?
Can the 6 year Statute of Limitations for the Court of Federal Claims be extended (or waived) if still waiting on the ABCMR decision?
---
I plan on seeking an Attorney for consultation, but I'd like to know before I go in if such a extension or waiver exists so I can pursue that route rather than face the financial burden of filing a CFC claim that will most likely just be denied. Want to avoid an EXPENSIVE Catch-22.
Thanks for any advice you might have...