Lawmakers look to restrict discharges for medical conditions

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Lawmakers look to restrict discharges for medical conditions


Army Times

By Kelly Kennedy

At first, as Kevin Stein’s hands began to go numb, he believed he had carpal tunnel syndrome.

Then, the Navy electronics technician first class said his arms and legs began involuntarily jerking as if he were a marionette under someone else’s control.

Though Navy doctors weren’t able to figure out the cause of Stein’s ailment, he was diagnosed with “motor tic disorder,” a nervous condition that causes quick, uncontrollable movements.

His doctor recommended that he go before the Navy’s Physical Evaluation Board because the uncontrolled movements made it impossible to continue working in his job, which involves handling small components and high voltage equipment.

His doctor expected that the board would find him unfit for duty and rate him for disability retirement benefits. But the board found him fit.

Then his sea screening board found him “unsuitable” for ship duty and worldwide deployability and recommended that he be administratively discharged after 14 years of service.

“In a nutshell, he had a condition that he was sent to a Physical Evaluation Board for, was found fit, and then, two weeks later, he was told he was unsuitable for service,” said Jason Perry, Stein’s lawyer. “They basically said, ‘We’re just going to use a different word for ‘unfit.’ ” But that word — “unsuitable” —
means an administrative dis charge with no medical benefits. And, said Perry and others familiar with the process, that is illegal. Perry, who has taken Stein’s case to federal court, said he hears about similar cases once or twice a week.

“It’s huge in the Navy,” Perry said. “The Army, for all of its problems, has a better take on that. Every once in a while, I see an Air Force case.” It’s also been an issue with National Guard and reserve troops, he said.

In some cases, the military bars re-enlistment, rather than administratively separating a service member. But that still denies them the disability retirement benefits.

Now, some lawmakers are proposing a change that would prohibit the military from administratively discharging troops with medical conditions. A provision to end the practice is in the Senate’s version of the 2011 defense authorization bill.

“We’re thrilled to see it” in the bill, said retired Air Force Col. Mike Hayden, deputy director of government relations for the Military Officers Association of America.

The House version of the defense bill calls for a study of the issue, but the explanatory report that accompanies the bill makes it clear House lawmakers are disturbed by the practice.

The committee “finds this action fundamentally unfair and inconsistent with the disability evaluation system reforms that have been enacted in recent years,” the report states.

Hayden said the current policy generally does not affect officers because they don’t re-enlist, but he often receives calls from officers worried about their enlisted troops.

MOAA, with assistance from retired Army Lt. Col. Mike Parker, who has worked as an advocate for troops dealing with the military disability system, helped inform House and Senate lawmakers about the issue.

Parker has been fighting the issue for years, sending out week ly reports and providing slide shows to military leaders.

But Parker and Perry both worry that the new legislation won’t help everyone who needs it.

“My biggest concern is that it doesn’t track any old claims — or people who have already gone through the system,” Perry said. “That allows the military to say, ‘It must have been OK before.’ ” But Perry said it’s not legal even now.

The policy under which service members are administratively discharged for medical conditions lists very specific conditions — and requires that any other condition be approved by the secretary of defense before a member can be separated.

They include such things as sleepwalking, obesity, dyslexia and homosexuality, but do not include ankylosing spondylitis (an autoimmune disease), diabetes or motor tic disorders — conditions in some of the cases Parker and Perry have seen.

“The secretary of defense has not, at least publicly, approved any other conditions, defects or circumstances for administrative separation,” Parker said, adding that the Defense Department is not following the rules for admin istrative discharges.” Hayden has a second question: The Pentagon’s former personnel chief, David S.C. Chu, issued a directive allowing the services to find service members unfit as part of the disability retirement process if they are unable to deploy. That would allow Physical Evaluation Boards to rate them for disability benefits for those unfitting conditions.

But none of the services has put that in its regulations.

The Defense Department “tasked the services this spring, asking each what they have done [in] reference to the [directive],” Hayden said. “We have not heard the outcome.” He said military officials seem concerned that the policy could swing so far that anyone deemed nondeployable could be medically discharged. Instead, Hayden said they could be retrained in a job where they aren’t required to deploy or perform sea duty.

In December, Parker wrote a letter to Adm. Mike Mullen, chairman of the Joint Chiefs, asking for an explanation.

“Incorporating ‘deployability’ into [Physical Evaluation Board] decisions has the potential to reduce the number of cases of administrative separation due to a sailor’s non-worldwide assignability,” Mullen wrote.

He also said the Navy was acting in accordance with the law with its “fit but unsuitable” discharges.

K Stein.jpg WILLIAM H. MCMICHAEL/STAFF

Kevin Stein is a Navy E-6 who was administratively separated for unsuitability because of service-connected medical problems.
Stein, who now has a job troubleshooting telephone systems by phone for a company in Chesapeake, Va., was later rated by the Veterans Affairs Department at 30 percent disability for his tics, 50 percent disability for sleep apnea and 20 percent disability for the numbness in his hands — the same problems the Navy listed as reasons that he was unsuitable for sea duty.

He said he’s encouraged by the proposed change in law.

“It’s hard because the medical system is saying one thing, but the screening board is saying something different,” he said. “If they’re going to get rid of you, they should pay your disability benefits.”
 
The Navy fu*ks people with this and "permanent limited duty" left and right (PLD even has its own NEC of 0091). It is a disservice and an agregious violation against what we give up to serve in the Navy. I am glad it is getting some public recognition about this unfair treatment.
 
The problem with the DES is summed up in the Chairman of the Joint Chiefs of Staff stating "fit but unsuitable" is legally permissible, even in the face of regulations asking for SECDEF approval of any condition not already approved for an administrative discharge.

This is a huge development and getting it in the 2011 NOAA would be completely outstanding. Hats off to Jason and Mike!
 
I would like to thank everyone involved for this article & the support I have had in the past 3 years as I have been trying to have my voice heard, and to hopefully right what I consider to be a wrong.

One thing in the article that may be misleading is that in the third paragraph, the tic disorder is referred to as being "a nervous condition. It is actually a "nervous system" or Neurological condition. I just want to make sure that it is not misinterpreted to be a Psychological or personality condition.

Kevin Stein
 
So what does a Sailor do if they fall under the "fit but unsuitable" discharge right now? Do you take all the way up to a formal med board? What are the chances or getting fair treatment with this on the horizon but not quite in effect?
 
Keep up the fight shipmate. I have no doubt you (and we) will win on this. You represent several million military personnel now.
 
So what is the outcome now? I see that this is very similar to my case. I just went through the PEB today and i think they will find me unfit but not sure.
 
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