The BCMR: It can make a grown man want to cry

Jason Perry

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#1
I have been reviewing various BCMR opinions to research an issue for a court case. Here is the link: Boards of Review Reading Rooms

Though I see a few sensible decisions, by far the vast majority of decisions having to do with disability issues represent legal error. It (almost) makes me want to cry. (Strike that, I do want to cry....however, I prefer to fight these injustices). So many members getting screwed out of their rightful benefits.

I would remind everyone that the BCMR is not the final word on most military administrative members.

I am calling BS on the military's treatment of disabled Servicemembers (again).
 

Edwin Crosby

Registered Member
#2
A new COURT CASE, WILHELMUS v. GEREN 09-662 2011 U.S. Dist. Lexis 75020, came out JULY 13, 2011. It says the BCMR'S must follow LEGAL PRECEDENT, which means, has already been decided, or, we ruled on that in the past, move along. Since the BCMR'S have NOT been following legal precedent thousands of veterans have had claims denied. You need to read this DECISION page 4 is best page. Can be found in couple days at www.veterancourtcodes.com webmaster has been sent a copy to post up. The BCMR'S are very corrupt, don't let them get away with stealing hundreds of millions there to pay for an injustice. Edwin Crosby III
 

Jason Perry

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#3
I added this case to the downloads section. Wilhelmus v Geren - Downloads - Physical Evaluation Board Forum

Note that this is only a District Court case. Therefore, by itself, it is not binding precedential case law. However, it is persuasive and the underlying point is important. It suggests that the BCMR should apply or explain why it declines to apply the analysis and outcome from earlier similar opinions.
 

franky

PEB Forum Veteran
#4
What and how do we need to do to resolve or rectify these boards? I mean as I read through several cases of veterans seeking resolve, all were denid. I was as if there is a blanket denial letter that is attached, which seems very unfair to the people seeking relief. Mr. Crosby is right in that the BCMR's are a waste of money and should be closed down. It seems like a waste of time to submit to the BCMR, however that may be the only option for some people, with little hope. Thanks you all for all that you do.

Frank,
 

Jason Perry

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#5
It is a complicated question. On dealing with the system as it is, I think that using the Federal Courts are a way to "shape" the law and get results (both for individuals and for members/veterans as a whole). The other way to approach the problem is through legislative reform. Congressional reform is the way to change things. Unfortunately, it looks like Congress is set to take a step backwards and to make it harder to get relief from unjust decisions. PEB Forum Home - Congress Set to Rob Wounded Warriors
 

89Falcon

PEB Forum Veteran
#6
It is a complicated question. On dealing with the system as it is, I think that using the Federal Courts are a way to "shape" the law and get results (both for individuals and for members/veterans as a whole). The other way to approach the problem is through legislative reform. Congressional reform is the way to change things. Unfortunately, it looks like Congress is set to take a step backwards and to make it harder to get relief from unjust decisions. PEB Forum Home - Congress Set to Rob Wounded Warriors


The original intent of the Boards was to provide a speedy, fair remedy for service members, so congress wouldn't have to fix every problem with a law. They decided that senior civilians should sit on the board so that they wouldn't be influenced by the whims of the "military brass". Early on, it looked pretty straightforward.....and when they messed up, the courts were quick to "fix" things.....(see "caddington").

Now we are in a world where people are given senior civilian positions in the military for "political correctness"....and even worse, many members of the senior civilian force are either former "brass"....or MARRIED to brass.......and the lines are blurred when some of the positions they occupy switch back and forth between military and civilian.

I have two HUGE problems with the boards....
1. the members come from the civilian leadership of the services. they are NOT trained in the law......heck, several are at best "marginally educated". They need to be positions appointed by the Pres, HOR, and Senate for 4-6 year terms....they need to be ACCOUNTABLE and CONSISTENT.
2. If you don't present an argument when you go to the BCMR, the courts won't listen to it later....so people unwittingly think that the board isn't the dealer's game and try to make their cases themselves (pro se).......and when they get rejected, hire a lawyer to fix it in court....and the courts refuse to consider it. The net effect is that the board process ends up making a service member pay a lawyer TWICE to get justice.....first at the BCMR clown show, then in Federal Court. If they are to keep the process, they need to allow new arguments at the federal court level. Since the boards are required by law to provide full and fitting relief, they should be helping you make the argument, not looking for loopholes.

Check out the education of this "3* equiv".....BTW, her hubby is an O6.....and was able to get a plum ANG Pentagon job......and you think, Anna Nicole Smith married well...

Biographies : BARBARA A. WESTGATE

hmmm..."New York Institute of Technology"....isn't that like Harvard? I don't think they have the academic credentials to get into the SEC (or the football team)!
 

acx

PEB Forum Veteran
#7
2. If you don't present an argument when you go to the BCMR, the courts won't listen to it later

Jason, can you please point to the law requiring to present the proper argument at the BCMR/BCNR before going to the Federal Court. Thank you.
 

Jason Perry

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#8
Jason, can you please point to the law requiring to present the proper argument at the BCMR/BCNR before going to the Federal Court. Thank you.
Metz case - Downloads - Physical Evaluation Board Forum . These cases are the most important detailing the requirement to raise issues at the agency (BCMR) level. This is not a statute that requires this, but rather case law.

This, also, is a somewhat complicated issue.
 

89Falcon

PEB Forum Veteran
#9
Jason, can you please point to the law requiring to present the proper argument at the BCMR/BCNR before going to the Federal Court. Thank you.
I'm not a lawyer (and I'm certainly not Jason), but here is kind of my understanding.......

-The courts avoid getting into the military's "business"......they defer to the military's leadership on how to fight wars, and who deserves promotion.
-If you go to the BCMR FIRST (ie, you don't go STRAIGHT to Federal Court), then the courts will typically defer to the military......they WON'T "re-try" your case, they will only consider whether the BCMR followed their own rules, and weren't "arbitrary and capricious" (ie, see Wilhelmus...)
-if you didn't present an argument to the BCMR, and they made a decision given that information that WASN'T arbitrary, capricious or contrary to law, then the court WON'T review it.....IOW, if you go to the BCMR and don't like the result, the Court of Claims will typically only view your appeal from a procedural standpoint....
 

klamsnacks

PEB Forum Veteran
#10
I have been reviewing various BCMR opinions to research an issue for a court case. Here is the link: Boards of Review Reading Rooms

Though I see a few sensible decisions, by far the vast majority of decisions having to do with disability issues represent legal error. It (almost) makes me want to cry. (Strike that, I do want to cry....however, I prefer to fight these injustices). So many members getting screwed out of their rightful benefits.

I would remind everyone that the BCMR is not the final word on most military administrative members.

I am calling BS on the military's treatment of disabled Servicemembers (again).
You know I've been reading these as well. Almost seems like they only uploaded the case in which a Denial decision was made. Now I know that's not fact as I've been able to find a few maybe 5 that were changed. But wow! and the file numbers are off for instance they jump from 100 to 108 then 114. What happend to 101,102,103, etc etch .... So I don't know, seems like they're trying to appease someone by saying, look we're transparent we show you all our case, but then only show you cases in which the military member lost.

Just my 2 cents,
Klam
 

Ed Mercanti

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#11
Most voting members of the ABCMR are GS-13 to GS-15 employees, not SES. One of the things one must realize about the BCMR is the vast scope of its responsibility. Civil War. WWI. WWII. Korean War. Etc. Awards and decorations. Court-martials. Bonuses. SBP. Service credit. Constructive service. Etc. So what do you think the average level of expertise is in the analyst writing a disability case? The analyst may get a three disability cases a year. Therefore, the BCMR should be approached much differently than a board which is dedicated to adjudicating disabilties.
 

pittpan2005

PEB Forum Veteran
#12
Most voting members of the ABCMR are GS-13 to GS-15 employees, not SES. One of the things one must realize about the BCMR is the vast scope of its responsibility. Civil War. WWI. WWII. Korean War. Etc. Awards and decorations. Court-martials. Bonuses. SBP. Service credit. Constructive service. Etc. So what do you think the average level of expertise is in the analyst writing a disability case? The analyst may get a three disability cases a year. Therefore, the BCMR should be approached much differently than a board which is dedicated to adjudicating disabilties.
Ed,
That makes sense that these guys/gals are working with many types of cases. I wouldn't expect them to be an "expert" in all areas, but that does raise a few questions from me.

1. Don't they have Attorneys or legal counsel to review each case for errors?
2. If they don't follow "the Law," why do we even waste our time appealing to this board? Sounds like Federal Court would be the better choice if you have a disability case built on law rather then asking for them to do the right thing. If the Board for Corrections can't be forced to do the right thing, where does the madness end?
 

Ed Mercanti

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#13
Yes, the Review Boards Agencies have both a medical and legal team to support the BCMR and the other boards in the Agency. Disability cases aren't reviewed by either team unless requested by the analyst. A large percentage of the ABCMR's disability cases are veterans who received an undesirable or bad conduct discharge who want their discharge changed to a medical retirement retroactive to (for example) 1968. Not a lot of expertise needed in those cases as a general rule. If an analyst doesn't realize there is a legal issue which would overcome the presumption of regularity, then the analyst will recommend disapproval without legal review. So you have to logically and chronologically demonstrate that an error in law did occur which would warrant favorable consideration of the request. That should prompt a legal review of the case. The BCMR does want to comply with law, regulation and legal rulings. You just have to present the case in a manner that they realize there is an error.
 

NDBravehart84

PEB Forum Veteran
#14
Yes, the Review Boards Agencies have both a medical and legal team to support the BCMR and the other boards in the Agency. Disability cases aren't reviewed by either team unless requested by the analyst. A large percentage of the ABCMR's disability cases are veterans who received an undesirable or bad conduct discharge who want their discharge changed to a medical retirement retroactive to (for example) 1968. Not a lot of expertise needed in those cases as a general rule. If an analyst doesn't realize there is a legal issue which would overcome the presumption of regularity, then the analyst will recommend disapproval without legal review. So you have to logically and chronologically demonstrate that an error in law did occur which would warrant favorable consideration of the request. That should prompt a legal review of the case. The BCMR does want to comply with law, regulation and legal rulings. You just have to present the case in a manner that they realize there is an error.
I liked pittpan's questions..... and it represents the frustrations much of us here go through everyday "trying to understand the system".

I also liked Mr Mercanti's answer.... giving us great insight as to how the Board thinks and functions when he said "If an analyst doesn't realize there is a legal issue which would overcome the presumption of regularity, then the analyst will recommend disapproval without legal review. So you have to logically and chronologically demonstrate that an error in law did occur which would warrant favorable consideration of the request. That should prompt a legal review of the case. The BCMR does want to comply with law, regulation and legal rulings. You just have to present the case in a manner that they realize there is an error". Which helps "me" understand that they aren't moved by time or emotions, merly the facts and the legal error that occured and the legal remedy required to correct it. ;) Thank-You Both
 

nwlivewire

PEB Forum Veteran
#15
I liked pittpan's questions..... and it represents the frustrations much of us here go through everyday "trying to understand the system".

I also liked Mr Mercanti's answer.... giving us great insight as to how the Board thinks and functions when he said "If an analyst doesn't realize there is a legal issue which would overcome the presumption of regularity, then the analyst will recommend disapproval without legal review. So you have to logically and chronologically demonstrate that an error in law did occur which would warrant favorable consideration of the request. That should prompt a legal review of the case. The BCMR does want to comply with law, regulation and legal rulings. You just have to present the case in a manner that they realize there is an error". Which helps "me" understand that they aren't moved by time or emotions, merly the facts and the legal error that occured and the legal remedy required to correct it. ;) Thank-You Both

Yep. Like they say, "You gotta put the hay down where the goats can eat it".
 

Ed Mercanti

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#17
I added this case to the downloads section. Wilhelmus v Geren - Downloads - Physical Evaluation Board Forum

Note that this is only a District Court case. Therefore, by itself, it is not binding precedential case law. However, it is persuasive and the underlying point is important. It suggests that the BCMR should apply or explain why it declines to apply the analysis and outcome from earlier similar opinions.
Jason, the BCMR attempts to be uniform in its decisions. Problem is with logistics. The ABCMR has an average of 2 boards a week 52 weeks a year. They have a constantly changing list of around 65 board members. So rarely is there 2 boards with the exact same membership. People have different backgrounds and experiences and may view the same situation in a different manner. So are there differences in ABCMR recommendations? Yes. The Board's Director and the DASA both attempt to keep some uniformity in the Board's decisions. But care has to be taken so the impartiality of the Board is not compromised.

I think the problem is that people view the BCMR as sort of a high court where the board members are highly specialized and constant. Nothing is further from the truth. This Tuesday's board may be comprised by a GS-14 logistitian, a GS-13 resource management analyst, and a GS-15 information management supervisor. Very possibly none of them ever wore a uniform. They have never seen a disability case before.

The analysts preparing the cases are GS-12s, most of which are retired Sergeants Major, CW4s, or LTCs. As a rule, none of them ever dealt in disability issues while on active duty.

This is why the BCMRs have to be approached in an entirely different manner than one would approach a board dedicated to adjudicating disability issues.

Ed
 

grizz13

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#19
so the system is corrupt and inconsistent, a medical crapshoot?
LOL, no it keeps them from being lazy and getting too comfortable like the PEBLO's and the people working at the PEB. They really don't care about soldiers, all they want to do is get paperwork done everyday, clock out at 5 p.m. and go home.

I wouldn't call it corrupt, incompetent yes, incomplete yes, broken HELL YES!
 

Jason Perry

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#20
Jason, the BCMR attempts to be uniform in its decisions. Problem is with logistics. The ABCMR has an average of 2 boards a week 52 weeks a year. They have a constantly changing list of around 65 board members. So rarely is there 2 boards with the exact same membership. People have different backgrounds and experiences and may view the same situation in a different manner. So are there differences in ABCMR recommendations? Yes. The Board's Director and the DASA both attempt to keep some uniformity in the Board's decisions. But care has to be taken so the impartiality of the Board is not compromised.

I think the problem is that people view the BCMR as sort of a high court where the board members are highly specialized and constant. Nothing is further from the truth. This Tuesday's board may be comprised by a GS-14 logistitian, a GS-13 resource management analyst, and a GS-15 information management supervisor. Very possibly none of them ever wore a uniform. They have never seen a disability case before.

The analysts preparing the cases are GS-12s, most of which are retired Sergeants Major, CW4s, or LTCs. As a rule, none of them ever dealt in disability issues while on active duty.

This is why the BCMRs have to be approached in an entirely different manner than one would approach a board dedicated to adjudicating disability issues.

Ed
Completely understand your points. However, I have some issues/points-

One of the biggest issues is with the substance of decisions. That is, while I don't think there is a requirement that the BCMR's respond to everything, they should respond to everything raised that is relevant. What I see, way too often, is that the BCMR decisions will either ignore completely or acknowledge an argument but not analyze/discuss. (This is a similar problem with the PEBs by the way). It makes it so much harder for anyone (the member, an attorney, or a reviewing court) to address a decision if it does not directly discuss an issue. That is, I would much rather prefer a decision to state, "Yes, you raised this point, however, we disagree because we find [we don't believe the evidence, we credit other evidence over this point, we think the law does not require this because X,YZ,]. Way too often, you get conclusory opinions. Along the lines of "we disagree because there was insufficient evidence to show probable error." The decisions, as far as I see, also do not adequately address injustices. They tend to gloss over this issue (at least from what I have seen). The main problem, I see is that the decisions are, by and large "arbitrary." That is, I have presented (and read about) many cases with amazingly similar facts but the decisions come out as a crap shoot.

You raise an issue that is huge, I think. A big problem I see is that BCMR boards often, instead of independently accepting or rejecting or even explicitly ruling one way or another on an issue, simply defer to someone else's decision. Now, in some cases, it is fair to say, "the original decision maker found X, and I see no basis to disagree." However, and this is a huge issue I see the courts grapple with, is whether the BCMR is deciding the case in the first instance (i.e., a de novo review) or if they are acting as an appellate authority. I have seen first hand where the BCMR does not clarify how they are viewing the case and thus, reviewing the case is much harder than it should be. Also, you raise another important issue- the lack of subject matter expertise. I have mixed feelings about this- that is, my sense is that the BCMRs (or any boards, really- especially PEBs) should not be substituting their judgments on the evidence, they should - in a really straight forward matter- state whether they accept or reject evidence and then rule on that evidence. What I see is that way too often, they "interpret" evidence and then inject their own views. This may seem somewhat hard to grasp what I am suggesting, but I have a concrete example that may help. Years ago, at the Board for Veterans Appeals (BVA), they used to have doctors sit on boards and offer their input into cases on medical matters. This was the way it was for years (and, if you can guess where I am going with this, at the PEB's it is currently the same way). Eventually, the Court of Appeals for Veterans Claims shot this practice down- the court stated that doctors should not be substituting their opinions for the medical opinions of examiners. They are supposed to be adjudicators/decision makers on the weight and value of evidence before it. If the evidence weighs one way or another, the BVA must rule based on that evidence, and not inject its own views into what the evidence means. If the evidence is not clear, the case must be returned for additional evidence that clears up the issue. Well, I think, way too often, the BCMRs do this (and the PEBs definitely do this)- the BCMRs either do this directly or they do it by relying on advisory opinions. This is bogus, in my view, as the opinion should not be making new evidence- it should only address the evidence currently in the case (though, still including evidence submitted by the applicant).

To a degree, though, I think that a huge problem with arbitrary results are in part (probably a large part) of the fact that BCMR decisions are not precedential. That is, if cases were binding or at least persuasive on other cases decided before, then there would be some sort of guide- almost a "Darwinian" survival of the fitness for "correct" decisions. As it stands now, the decisions do not relate to each other- and therefore, there is no process of decisions getting better. It is almost akin to a lack of an "after action review" or feedback loop for the quality of decisions. If each decision stands on its own, it makes it very difficult to have any sort of meaningful quality control built into the system.

Another aspect, though, that I would love to hear your input on is the role of the analysts. Do they make substantive recommendations? Do they prepare briefs or reports in some or all cases? Do the board members themselves personally read and review ALL of the evidence? I have my hunches and I think I know what should happen in this part (though, strictly speaking, this is a gray area for whether it legally matters- I think there are two issues here- what is the ultimate decisions is way more important and also, whether the BCMR decides directly or if a higher authority ultimately makes the decision on behalf of the Service Secretary).




so the system is corrupt and inconsistent, a medical crapshoot?
It is much more complicate than this. But, many decisions are arbitrary and capricious, in my opinion.

LOL, no it keeps them from being lazy and getting too comfortable like the PEBLO's and the people working at the PEB. They really don't care about soldiers, all they want to do is get paperwork done everyday, clock out at 5 p.m. and go home.

I wouldn't call it corrupt, incompetent yes, incomplete yes, broken HELL YES!
There are many aspects that are broken in the process. I would not say that everyone involved is corrupt/lazy/out to get servicemembers. My opinion, I don't believe that most folks wake up in the morning and say, "How can I screw someone today?". I know of many PEB board members, and many staff at the higher headquarters that are straight shooters. I won't/can't say who they are, but I rely on some of these folks to know that I can pick up the phone, ask a questions and get a good faith answer. The problem with many of the issues are that there is a general lack of accountability/quality control/feedback loop to correct problems.

A few examples- I raised for years that pain was compensable for joints. It eventually was accepted that I was right. However, all of the board members on my original cases where I raised the issue had moved on/PCS'd/retired before it was shown that my position was correct. This is a huge problem. If it takes 2-5 years to correct a bad decision and the feedback never gets back to the original adjudicator, then there is no opportunity to learn the "lesson learned." (Though, in this case, the lesson learned was promulgated in specific policy memos and DoDI's...the point is not that the message never gets to the decision-makers- its that they end up thinking what they are doing now is always right and the lag time makes them less inclined to see errors or ways to improve decisions).

Now to be sure there are many dirtbags/slugs/oxygen thieves that I have come across in the system. And there are a few rotten apples that I think fight tooth and nail to keep people from getting the right outcome. But, these are few and far between (don't get me wrong, though; a few of them have outsize impact and should be shown to a new career in anything but a position of responsibility). I know the frustration that people have with the system. But, it is an error to think that all involved with the system are lazy or corrupt. Some are, but most are good- and of those who are good, if they get issues wrong, they are convinced they are doing the right thing. In my view, it is really systemic errors and lack of leadership fixing relatively simple issues that is to blame (and attendant to this is the fact that the MTOE/TDA is broken- there is not a sufficiently powerful officer/UnderSecretary in charge who will exert their power to fix readily apparent problems; a huge issue is that so many decision-makers in the process can point to someone else as the "decider" or reason why things are AFU).

Okay, I wrote a ton on this issue. It is somewhat cathartic for me, too, to "vent" (I have just come off an incredible week, with travel to JBLM in Seattle, then to Washington DC for two FPEBs, an astounding win at one of the FPEBs, two briefs filed in Court of Claims, my first brief before Court of Appeals for the Federal Circuit accepted (which is no mean feat- the formal briefing process is complicated there and often first briefs are rejected), notice of several wins at the BCMR and in Court of Claims, and much work ahead to be done).

The system does "suck" in many ways. But, there are clear paths to success in fighting claims. It sure does not always work out the way it should. And it takes waaaaaay to long to resolve anyway. But, as someone smarter and tougher than me once said, "if it were easy, anyone could do it."
 
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