Credit Where It is Due: A Conscientious and Thorough AFCCA Opinion on Prison Conditions

2/11/2021

My pet project this spring is to investigate prison conditions in the brigs and at Leavenworth. Hopefully next week I will be receiving the results of a FOIA request for all Article 138 complaints at the Marine Corps Brigs. My motivation was the seemingly black box of the prisons, and a series of ACCA opinions dispensing with conditions of confinement claims in footnotes (without any reference to the basis for the claim).

Thus, I want to commend AFCCA for the below opinion (download below) in Merritt. The prisoner in this case has a very weak claim for an Eighth Amendment violation--a failure to provide sterile water for his CPAP machine. Nevertheless, the court engaged in an extensive analysis of the relevant law and decided the case. The legal discussion alone was very helpful as a guide for practitioners. The dissenting judge also raised important issues with the various doctrinal bars to relief in this area. The most significant bar, of course, is the administrative exhaustion requirement. A crusty CPAP machine does not cry out to heaven for redress, but that is not the point. The point is that the same difficulties in getting relief for this claim apply also to serious claims (at least with respect to exhaustion).

merritt_-_39754.u.pdf
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Brenner Fissell

EIC

3 Comments

Cloudesley Shovell

2/12/2021 10:56:37 am

The most appalling thing about reading this case is the fact that all of the considerable power of the federal government was unable for MONTHS to procure simple medical supplies that anyone can get thru Amazon, any one of a considerable number of online CPAP supply stores, or shoot, a quick trip down to the local pharmacy. The comical incompetence demonstrated by the various players as discussed in the opinion serves to demonstrate what a crazy clown show any government, including the military, can be.

That all being said, appellant was prescribed a CPAP machine way back in 2016. What the heck was he doing on active duty? How can one possibly be considered deployable when one must lug around a CPAP machine? Yes, yes, it's the Air Force, and the jokes practically write themselves, but still. Are there any standards any more?

And finally, the panel reached the right result.

Kind regards,
CS

Philip D. Cave link

2/12/2021 01:37:21 pm

I have met a number of people who use a CPAP and are on active duty.

DODI 6130.03 seems to make it permissible to remain on active duty while needing a CPAP. See para. 5-27.

AR 40-501 also seems to allow for enlistment with a condition successfully managed with a CPAP.

2/12/2021 05:59:02 pm

Mr. Cave:

I was intrigued. So I looked up DoD Instruction 6130.03. I found it at this link:

https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/613003p.pdf

I scrolled thru the table of contents. Sure enough, there it is, Section 5, labeled Disqualifying Conditions. Disqualifying.

I then clicked on thru to Section 5. Here's the first paragraph:
5.1. MEDICAL STANDARDS. Unless otherwise stipulated, the conditions listed in this section are those that do not meet the standard by virtue of current diagnosis, or for which the candidate has a verified past medical history. The medical standards for appointment, enlistment, or induction into the Military Services are classified into general systems in Paragraphs 5.2. through 5.30.

Then I went on to paragraph 5.27. Specifically subpara. b: Current diagnosis or treatment of sleep-related breathing disorders, including but not limited to sleep apnea,

So, the way I read it, sleep apnea (the problem a CPAP is supposed to assist with) is a *disqualifying* condition.

Now I don't know Senior Airman Merritt had sleep apnea prior to enlisting, if he got a waiver, or if he was only diagnosed sometime after enlisting. All I know is that based upon my experience in the Navy, way back in the day, non-deployability a basis for separation.

I poked around. Seems it still is. See MILPERSMAN 1610-015 (Navy specific) and DoD Instruction 1332.45 more generally. Certainly for the Navy I would think needing a CPAP would make you non-deployable. I can't imagine needing to use one of those a berthing compartment with 30 or 60 of your closest friends trying to sleep while your CPAP pumps away.

Kind regards,
CS

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Credit Where It is Due: A Conscientious and Thorough AFCCA Opinion on Prison Conditions

Brenner Fissell

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