Case Successes

Below are just a few examples of cases where Josh Grubaugh successfully fought to protect his clients' rights by considering every angle under Military Law and the U.S. Constitution, as well as Veterans Affairs rules and regulations.

Criminal and Military Defense

While deployed to Afghanistan, Josh’s client secretly recorded videos of members of his unit using the latrine. After other Soldiers in the unit apprehended him, the Army Criminal Investigation Division (CID), seized his cell phone. CID also seized his laptop computer to search for evidence of his alleged crimes. The issue on appeal was whether the laptop seizure, and subsequent search of the laptop’s contents, was lawful. In a 4-1 opinion, the Court of Appeals for the Armed Forces (CAAF) reversed the trial court and Army Court of Criminal Appeals. CAAF found CID lacked probable cause to seize the Soldier’s laptop computer, and suppressed the contents of the laptop. CAAF vacated his guilty plea and convictions, and authorized a rehearing. Josh handled this case while serving on active duty in the United States Army at the Defense Appellate Division. He wrote the principal brief at CAAF, and also argued the case. This was a huge victory for his client, as CID found evidence on his laptop that led to additional criminal charges unrelated to the secret recording of videos in the latrine in Afghanistan; because they violated his rights by taking the computer in the first place, the Army could no longer use the laptop in a prosecution of him. Read the CAAF’s official opinion here. Read More
An officer panel convicted Josh’s client of various sexual offenses, of making a false official statement, and of obstruction of justice. CAAF vacated his convictions and his sentence. Josh wrote the principal brief at CAAF, and also argued the case. The issue on appeal was the implied bias of the panel. Implied bias is a unique concept for military justice, where the Court is looking to protect the integrity of the system and how fair it appears, without determining any actual bias or prejudice against the accused. Here, three of the panel members served on the Sexual Assault Review Board (SARB) where the client’s case was briefed before his trial. Even though the three members said they had no recollection of his case from that time, CAAF found that actual memory of the case or actual bias towards him was irrelevant. Rather, because CAAF found that the three members gave inaccurate answers about their service on the SARB, they prevented a full and knowing voir dire. Therefore, the convictions could not stand because a member of the public, in these circumstances, would harbor substantial doubt about the fairness of the court-martial process. Read the CAAF’s official opinion here. Read More
The Army Court of Criminal Appeals (ACCA) vacated Josh’s client’s conviction for adultery as well as his sentence to a bad-conduct discharge. A rehearing was not authorized, as the basis for the decision was factual insufficiency. Under Article 66, ACCA reviews the record of trial anew, taking into account they have not personally observed the witnesses and do not weigh credibility, to determine whether they are convinced beyond a reasonable doubt of the accused’s guilt. In Josh’s brief and reply brief, he highlighted that the government failed to prove his client was married at the time of his accused misconduct. ACCA agreed. So they, essentially, entered a finding of not guilty. At court-martial, he had already been acquitted of the other charges. After the trial, he was able to leave the Army with an honorable discharge and his full VA benefits. Read the ACCA’s official opinion here. Read More
ACCA agreed with Josh’s brief that two of the specifications his client pleaded guilty to were multiplicious, and two other specifications were an unreasonable multiple of charges. So ACCA dismissed two of those four specifications—solicitation to wrongfully distribute oxycodone, and possession of morphine. Read the ACCA’s official opinion here. Read More
Josh’s client was HIV positive and did not disclose this to his partner, a fellow Soldier. He was convicted, in part, of aggravated assault and sentenced to a bad-conduct discharge, confinement for 12 months, forfeiture of all pay and allowances, and reduction to the grade of E-1. ACCA agreed with Josh’s reply brief and oral argument that the military judge committed instructional error, and the conviction for aggravated assault should be modified to the lesser charge of assault consummated by battery. ACCA also modified the sentence, upholding only the bad-conduct discharge. Read the ACCA’s official opinion here. Read More
ACCA agreed, in part, with Josh’s supplemental brief and oral argument that the Staff Judge Advocate provided the wrong legal advice, and the client was entitled to a new action, and renewed chance at clemency. The opinion is more interesting for the sections of the opinion that ACCA rejected, however. There is a long discussion on Elonis’ reach to Article 120, which was finally resolved by CAAF in McDonald, where CAAF ruled the mens rea for sexual assault by bodily harm is “general intent.” As Josh discussed in a blog post at Global Military Justice Reform, there are potential issues with CAAF’s analysis of certain military crimes as being “general intent” crimes, in the Supreme Court’s Elonis framework. But SCOTUS has not taken up any of these petitions when Appellants have challenged CAAF’s framework. Read the ACCA’s official opinion here. Read More
ACCA agreed with Josh’s brief that found one of the conspiracies his client was convicted of should be vacated. ACCA also agreed to dismiss one specification for dereliction of duty, conduct unbecoming an officer, and obtaining medical services under false pretenses—because these were alternative theories of culpability for the same course of conduct. The Court also dismissed the remaining specifications of conduct unbecoming an officer after finding they were an unreasonable multiplication of charges with six specifications of false official statements. Read the ACCA’s official opinion here. Read More

Veterans Disability Benefits

The Court of Appeals for Veterans Claims (CAVC) remanded the veteran’s case because the Board of Veterans Appeals (BVA) failed to discuss all relevant and material evidence in the case. Josh found evidence from medical records in 2015 that suggested the veteran’s hearing worsened sometime before a March 9, 2016, audiological test. The CAVC agreed with Josh’s arguments, and remanded the case to the BVA. The BVA must discuss this germane evidence it previously overlooked. The BVA must also make a ruling on whether a retrospective medical opinion is necessary to determine if the veteran is entitled to a compensable rating for a hearing disability before March 9, 2016. Read the CAVC’s opinion here. Read More
CAVC found the BVA erred in the veteran’s case when it placed the burden on him to show the VA examiner was qualified, and ordered the case remanded. CAVC also found the BVA should address two arguments raised on appeal, whether the spinal disabilities were secondarily related to the veteran’s knee disabilities, and whether VA adequately searched for all the relevant medical records. Read the CAVC’s opinion here. Read More
Appellant was attempting to reopen an old claim for a heart disability. He claimed he had been exposed to Agent Orange near the Korean demilitarized Zone (DMZ) in the early 1980s. The VA presumes servicemembers who serve at or near the Korean DMZ between September 1, 1967 and August 31, 1971 were exposed to herbicides. Since the veteran served outside this period, he had to show actual herbicide exposure for VA to award service-connection for his heart disability. The Board would not reopen his claim, finding Appellant had presented no new and material evidence of exposure to Agent Orange. CAVC agreed with my arguments, finding the Board errored when it did not consider the Appellant’s lay statements under the correct legal standard. His claim of actual herbicide exposure will be heard again by the Board, as he has another opportunity to make his case and potentially collect on his claim. Mem. Decision Read More
On April 21, 2021, the VA found a veteran was service-connected for a post-hysterectomy with status post oophorectomy, endometriosis, dyspareunia, with an effective date of May 24, 2013. The disability rating was 50%. She received a check for $90,910.78 of backpay, and will receive approximately $905 a month for the foreseeable future. When Grubaugh Law first received her case in 2019, her claim had been denied by the Board of Veterans and she was down to her last appeal. The Board had found there was no clear and unmistakable error (CUE) in a prior VA denial of her claim. Pursuant to Rule 33, we filed a memorandum at the Court of Appeals for Veterans Claims arguing the Board should not have used the unforgiving CUE standard. Rather, the Board should have taken the veteran’s allegation of CUE as a notice of disagreement, and applied the more favorable presumptions veterans are entitled to. The Secretary of the VA, through counsel, agreed with our filing and remanded the case back to the Board of Veterans Appeals. On remand, we wrote another brief arguing that VA failed to assist the veteran, and the veteran submitted new and material evidence relevant to her claim. Agreeing with our arguments, the Board remanded the claim to the Agency of Original Jurisdiction in February 2020, ordering a new medical examination. The claim then bounced back and forth between the AOJ and the Board a few more times. After two medical examinations, VA finally agreed the veteran’s medical condition was service-connected. We at Grubaugh Law were ecstatic for this life-changing decision for the veteran! Read More
After a 7½ year battle, the Board of Veterans Appeals ruled in favor of veteran, Mr. Gregory Goskey. The August 2021 decision held the Seattle, Washington, Regional Office (RO), and a previous Board decision from January 2019, were wrong to find Mr. Goskey owed the VA more than $13,000. In February 2014, the VA sent Mr. Goskey a letter requesting he update the status of his dependents. On March 24, 2014, he returned the form noting a mistake. VA had his ex-wife on record. The updated form showed the veteran divorced K.G. in February 2005 and married V.G. in March 2005. The RO found he should’ve made that update in 2005. So he owed the VA $13,189.88. Thus, even though he had been lawfully married to V.G. for over nine years, the VA claimed a $13,000 overpayment to the veteran because they had the wrong dependent’s name on record. In his first appeal to the Board, Mr. Goskey explained that during the month of May 2005, he sent marriage and divorce documents to the VA at Tacoma, Washington, for the purpose of updating his dependent. He did not send the documents via certified mail and in hindsight realized he should have because Tacoma VA claims the documents were never received, leaving him with no proof he sent the documents but his word. In January 2019, the Board affirmed the ROs action, finding the preponderance of evidence showed Mr. Goskey first informed VA of his new marital status in the March 24, 2014, correspondence. Grubaugh Law entered the case at this point, representing the veteran in his appeal to the Court of Appeals for Veterans Claims (CAVC). Pursuant to Rule 33, we filed a memorandum with CAVC and the Secretary of the VA, arguing the Board did not follow precedent. In a situation such as Mr. Goskey’s, the Board must explicitly engage in a credibility determination before finding the balance of evidence supports the VA position. The Secretary, through counsel, agreed with our filing and joined us in a motion to remand the case back to the Board of Veterans Appeals, which the CAVC granted. On remand, we wrote another brief arguing why the Board should believe Mr. Goskey, and assisted him in presenting testimony. After the hearing, the Board found in his favor, saying the balance of evidence suggests he did attempt to file an updated record of dependents in March 2005. So just an incredible result for the veteran. We at Grubaugh Law were happy we could help. Read More

Prior results do not guarantee a similar outcome.