October 23, 2013 10:11 AM
A National Guard veteran injured while training for combat has lost her battle to obtain the enhanced benefits provided to those injured while engaged in combat.
In a decision potentially important for other training-injured vets as well, U.S. Court of Federal Claims Judge Edward J. Damich rejected the pleas of former New York National Guard soldier Tanya L. Towne.
Scott MacKay, general counsel for Lockheed Martin Information Systems, was representing Towne pro bono.
Trained as a radio repair specialist, Towne fell while wearing heavy gear during a house-clearing drill in 2004. She subsequently deployed to Iraq, where she says she was in constant back pain. In 2009, she was honorably discharged with a 10 percent disability rating.
The case essentially turned on whether the Defense Department acted reasonably in interpreting the combat-injury benefits as applying strictly to those injured in combat and not those injured in training.
"The DoD’s construction centers around an ideal that it calls 'the tip of the spear,' Judge Damich noted. "The DoD Opinion states that it intended its definition to secure entitlement to...'those service members taking the greatest risks and waging the war at risk of death or serious injury.'"
The relevant term of art in assessing eligibility is not “combat-related," Damich reasoned. Instead, the relevant term is “combat-related operations.” And operations, the judge concluded, differ from training.
"Although Towne’s explanation is reasonable," Damich said, "the court cannot say that the DoD’s interpretation is unreasonable."
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