Frequently Asked Questions
The Court sent you the legal notice regarding this lawsuit because government records show
that you were discharged from military service between December 17, 2002, and October 14,
2008, as a result of a finding by a Physical Evaluation Board ("PEB") that you were unfit for continued active duty service due, at least in part, to Post Traumatic Stress Disorder ("PTSD"), and were assigned a disability rating for PTSD of less than 50%.
The purpose of this website is to inform you of the Sabo class action lawsuit, to advise you of how your rights may be affected by this lawsuit, to inform you how you can join or "opt-in" to the lawsuit if you choose to do so, and to inform you of the opportunity to apply to a military records correction board for a review of the PTSD disability rating that the PEB assigned you. This review will be given priority as a claim pending litigation.
A group of seven veterans filed a lawsuit against the United States in the United States Court of
Federal Claims on behalf of themselves and all other veterans who served on active duty in the
U.S. Army, Navy, Marine Corps, or Air Force, were found by a PEB to be unfit for continued
service due, at least in part, to the individual's PTSD, were assigned a disability rating for PTSD
of less than 50%, and, as a result, were released, separated, retired, or discharged from active
duty on or after December 17, 2002 (regardless whether such release, separation, retirement, or
discharge resulted in the individual's placement on the Temporary Disability Retirement List).
This lawsuit is about whether the military services violated the legal rights of these veterans by
assigning them a disability rating below 50% for PTSD. The Court has not yet made a decision
on this issue.
More detailed information about this lawsuit is contained in the Amended Complaint filed in
this lawsuit. The Amended Complaint is available under the link Important Documents.
The official name of the case is Sabo, et al., v. United States, Case No. 08-899C (Fed. Cl. filed
Dec. 17, 2008).
The veterans who filed this lawsuit seek a Court Order requiring the military services:
In a class action lawsuit, one or more people called "Class Representatives" (in this case
Michael Sabo, Nicholas Wells, Juan Perez, Alan Pitts, Billy J. Talley, Aimee Sherrod, and Tyler
Einarson) sue on behalf of other people who have similar claims. The people together are a
"Class" or "Class members." The people who sued - and all the Class Members who join the
lawsuit - are called "plaintiffs." The United States is called a defendant. The United States
Court of Federal Claims will resolve all legal and factual issues for every eligible class member
who timely submits a Class Action Opt-In Notice Form. Those individuals who do not timely
submit a Class Action Opt-In Notice Form will be excluded from this lawsuit.
More information about why the Court has allowed this lawsuit to be a class action is located in
the Court's Order certifying the Class, available under the link: Important Documents.
You will need to decide whether you wish to join this Class Action. You are not part of the Class unless and until you fill out the Class Action Opt-In Notice Form that was sent to you by the Court with the legal notice of this lawsuit. Rule 23 of the Rules of the United States Court of Federal Claims requires that Class Members wishing to participate in this class action lawsuit must join or "opt in" to this class action. If you fit the description described under FAQ No. 6, you may opt in and join this Class Action.
Under the Rules of the United States Court of Federal Claims, the Court has allowed the lawsuit to be a class action on behalf of the following individuals:
All individuals who (a) served on active duty in the U.S. Army, Navy, Marine Corps, or Air Force, (b) were found by a Physical Evaluation Board to be unfit for continued service due, at least in part, to the individual's PTSD, (c) were assigned a disability rating for PTSD of less than 50%, and, as a result, (d) were released, separated, retired, or discharged from active duty after December 17, 2002, and prior to October 14, 2008 (regardless whether such release, separation, retirement, or discharge resulted in the individual's placement on the Temporary Disability Retirement List).
You should have received with the legal notice of this lawsuit sent to you by the Court a document entitled "Class Action Opt-In Notice Form." (A copy can be found under the link Important Documents.) If you choose to participate in this lawsuit, and potentially become entitled to additional financial and other benefits that may result from this lawsuit, including any additional financial or other benefits resulting from your application for prioritized review by a military records correction board, it is extremely important that you read, sign and return the Class Action Opt-In Notice Form by mail or facsimile to Class Counsel at the following address:
National Veterans Legal Services ProgramThe Class Action Opt-In Notice Form must be faxed or postmarked on or before 180 days after the date of the legal notice you received, that is, on or before November 10, 2010.
c/o SABO CLASS ACTION LITIGATION
P.O. Box 65762
Washington, DC 20035
Facsimile: 202-223-9199
If you do not submit a Class Action Opt-In Notice Form postmarked or faxed on or before November 10, 2010, you cannot participate as a Class Member in this case. As a result, you will not be able to apply to a military records correction board for prioritized review of your PTSD disability rating, and you will not receive any money or benefits from either the Court or the board's prioritized review. However, you keep the right to apply to a military records correction board, subject to the normal time it takes to process such applications. You will also still have the right to hire your own lawyer or proceed without counsel to sue the military services separately about the same legal claims in this lawsuit, and you will not be legally bound by any decision of the Court in this class action.
If you join this lawsuit, you will be given the opportunity to, but are not required to, apply for a
prioritized review by a military records correction board. You will be sent a preformatted
application requesting assignment of higher rating(s) for PTSD than you received from the PEB.
If you file the application described in the prior paragraph, the board will correct your military
records to show that your disability rating for PTSD was at least 50% for the six-month period
following the date you were released from the service. In addition, the board will determine
whether - between the date six months after your release from the service to the date of the
board's review - your PTSD disability rating of at least 50% should be increased, decreased, or
remain the same. Absent fraud or unforeseen circumstances, your application will not result in the board reducing the PTSD rating(s) that the PEB previously assigned to you. In other words, you cannot end up with lower disability ratings for PTSD by joining this lawsuit and applying for prioritized review, and you cannot lose any other collateral military benefits you currently receive such as entitlement to health care, ID card, commissary, and PX privileges, unless fraud
or unforeseen circumstances are found to exist.
If you were medically separated or permanently retired by the PEB, then the PTSD rating
assigned by the military records correction board for the later period (that is the date six months
after your release to the date of the board's decision) will be a permanent disability rating for
PTSD.
If you are currently on the Temporary Disability Retirement List ("TDRL"), and you join this
lawsuit and file your application for a prioritized review, the military records correction board
cannot take you off the TDRL and separate you without giving you permanent disability
retirement benefits.
Likewise, absent fraud or unforeseen circumstances, the Court will not reduce your PTSD
disability rating(s) assigned to you by the PEB. You cannot, in other words, end up with a lower
disability rating by joining this lawsuit, and any collateral benefits you currently receive, such as
health care, ID card, commissary, and PX privileges, will not be negatively impacted, unless
fraud or unforeseen circumstances are found to exist. If the board does not give you at least a
50% final disability rating, you have the right to ask the Court to give you a permanent 50%
rating.
If you join this lawsuit, you will be sent a special preformatted application form for use in
applying to one of two military records correction boards - the Physical Disability Board of
Review ("PDBR") or the Board for Correction of Military Records ("BCMR") of the service
branch in which you served. If you were discharged with a combined disability rating of 20% or
below, you will be able to apply to either board. If you received a combined rating of 30% or
higher, you will need to apply to your service's BCMR. Included with the application will be
written advice from the lawyers who represent the veterans in this lawsuit concerning which of
these two boards apply to you, and how to complete the application form.
After either of these boards receives your application, it will obtain the medical records that were
reviewed by the PEB in your case. If you have already applied for VA benefits, and consent to
the board considering those records, the board will obtain from the VA a copy of the records that
are in your VA claims file. These documents include the decisions made by the VA on your VA
claims and the medical records that the VA reviewed in making its decisions on your claims. In
addition, you may submit evidence about your PTSD that may not be in your PEB or VA claims
file.
The PDBR will review the medical records and documentary evidence made available in order to
determine the final disability rating. You will not have to travel to appear before the PDBR, and the PDBR will not hold a hearing. The board will make a decision based on the records
described above and any documents you may submit.
The BCMRs will either make a determination based solely on the medical records and other
documentary evidence, or if you request and/or they deem appropriate, the BCMR can place an
individual back on the TDRL and order a re-evaluation in order to determine the appropriate
final rating. You will not have to travel to appear before the BCMR, although you have the right
to request a hearing if you so desire.
Absent fraud or unforeseen circumstances, joining the lawsuit cannot result in a reduction of any
of the military benefits, such as health care, ID card, commissary or PX privileges, which you
received in the past or are currently receiving. Whether you will receive any financial benefits
by joining this lawsuit depends on your individual circumstances. You may receive some
financial benefits or other benefits, or no benefits. If you have questions about whether you will
receive any benefits from joining the lawsuit, you should consult a lawyer. Information about
lawyers can be found in the answers to the FAQ Nos. 14 and 15.
Additional information on the potential benefits that you could receive by joining this lawsuit
can be found in response to FAQ No. 19.
This lawsuit does not involve the disability ratings that the VA may have given you. Your VA disability ratings cannot be reduced as a result of joining this lawsuit. Any additional benefits you receive from this lawsuit may be offset by your VA benefits, depending on your individual circumstances.
Joining this lawsuit will not cost you money. The lawyers who represent the veterans who brought this lawsuit are doing so on a pro bono basis, meaning that they are not charging them a fee for their services. These lawyers have agreed not to charge you a fee if you join this lawsuit.
The Court has decided that Barton F. Stichman and Amy F. Fletcher of the National Veterans
Legal Services Program (NVLSP), and Brad Fagg, James J. Kelley II, Richard W. Black and
Charles P. Groppe of the law firm of Morgan, Lewis & Bockius LLP are qualified to represent
you and all others who join this lawsuit. Collectively, these lawyers (referred to here as "Class
Counsel") are experienced in handling similar cases and class action lawsuits. More information
about these lawyers, including NVLSP; Morgan, Lewis & Bockius LLP; their respective practices; and their lawyers' experience is available at http://www.nvlsp.org and http://www.morganlewis.com.
Please note, however, that the representation of you and others who join this lawsuit by NVLSP
and Morgan, Lewis & Bockius LLP, and any other attorneys with whom they associate, is
limited to the certification of this lawsuit as a Class Action, the acceptance of timely opt-in forms
from you and other eligible veterans, providing limited advice to you and other individuals who
have received this notice about the decision whether to join this lawsuit, and the litigation of this
lawsuit. If you join this lawsuit, you will be given the opportunity to apply for prioritized review
by a military records correction board. Representation by NVLSP, Morgan, Lewis & Bockius
LLP, and any attorneys with whom they associate, includes giving you limited advice in
connection with any application to such a board that you may file, but does not include
representing you before the board if you do apply.
You do not need to hire your own lawyer to join this class action because Class Counsel will
work on your behalf. However, you may hire your own lawyer to advise you, and to appear in
court and speak for you. If you decide to join this class action and later wish to apply for
prioritized review by a military records correction board, Class Counsel will not represent you
before the board. There is no requirement that you have someone represent you before the
board, but you may choose your own representation if you wish to be represented.
If you do not join the lawsuit you will also retain the right to hire your own counsel or proceed
without counsel to sue the military services separately (with or without counsel) about the same
legal claims in this lawsuit.
Both NVLSP and Morgan, Lewis & Bockius LLP are representing the veterans who filed this lawsuit and those who decide to join this lawsuit (including you, if you so chose) without charging any of these veterans any money. However, if Class Counsel obtains money or benefits for any of these veterans, they may ask the Court to order the government to pay their fees and expenses. Under no circumstances will any of these fees and expenses come from the money or benefits to which you may become entitled as a result of this lawsuit.
If you are not sure whether you can be included in this Class Action, you can contact Class Counsel in this case at the address provided in response to FAQ No. 7 above.
No money or benefits are available now because it is up to those eligible to join the lawsuit to decide whether to join the lawsuit. No money or benefits are guaranteed if you join this lawsuit, with one exception. You are guaranteed if you join this lawsuit and apply for prioritized review by a military records correction board, that your military records will be corrected to show that your disability rating for PTSD was at least 50% for at least the six-month period beginning on the date you were released from active service. This six-month correction may (or may not) result in payment of money to you.
There is no guarantee that this lawsuit will be completely successful. However, below is a short description of the maximum additional benefits for PTSD that you potentially could receive if you join the lawsuit and the lawsuit is completely successful. Please click the category below that best describes your situation for further information.
If you join this lawsuit, it is possible, but there is no guarantee, that you will become entitled to the maximum additional benefits discussed in the answer to FAQ No. 19 above. There are two ways you can become entitled to these maximum additional benefits through this lawsuit:
1. The first way involves applying for prioritized review of your case by a military records correction board. If you join this lawsuit, you will be mailed a special application form that will permit you to apply for prioritized review. If you apply to a military records correction board using the form, the military services guarantee that the board will correct your military records for the first six months following your separation or retirement. In addition, the military records correction board will decide whether you are entitled to the maximum additional benefits discussed above.
2. There is a second way you can become entitled to the maximum additional benefits through this lawsuit. The Court has decided to delay deciding this lawsuit to allow veterans who join this lawsuit to apply, if they choose to do so, for prioritized review of their PTSD disability rating by a military records correction board. If plaintiffs are not satisfied with the results before the military records correction board, you could still request relief from the Court, which will then decide whether class members are entitled to relief (assuming that they have not already received the maximum additional benefits as a result of their application for prioritized review by a military records correction board).
If you "opt-in," it is in your interest to apply for prioritized review. Although you are not required to apply for prioritized review, the Court may nevertheless agree with the government's argument and require your case to be considered by a military records correction board before the Court will rule on your claim. This may delay receipt of any money or benefits to which you are entitled.
If you did not receive legal notice about joining the lawsuit AND you think you are one of the veterans described on the right side of this page, Click Here.
If you DID receive legal notice, but did not join the lawsuit, you may still be able to receive additional benefits Click Here.