Happy 19th Birthday, PEBFORUM

HAPPY 19TH BIRTHDAY, PEB FORUM!!

Nineteen years ago, I started PEBFORUM to provide information, support, and community for Servicemembers and Veterans facing disability-evaluation issues, compensation questions, and the many related benefits problems that too often come with military disability cases.

When I first began helping people with these issues more than twenty years ago, I had no idea that this forum would become such a long-running part of my life. I am grateful that I have been able to help where I can. But the greater credit belongs to this community: the members who ask questions, share experiences, provide timelines, correct misunderstandings, encourage others, and help the next person who arrives here confused, frustrated, or uncertain about what comes next.

Special thanks must go to the moderators and long-time contributors who keep this place running. Without them, PEBFORUM would not have lasted. They answer questions, guide members, maintain order, and preserve the spirit of the forum. Their work has helped countless people over the years, often quietly and without recognition.

I am always happy when I receive calls, emails, or messages from people telling me that PEBFORUM helped them or at least helped them understand that they had rights, options, and the possibility of pursuing the compensation and benefits they had earned. That has always been the point. Pay it forward.

At the same time, I know there is still much work to do. Over recent years, I have not been able to post or respond as much as I did during the first decade or more of the forum. Professional and personal obligations have limited my time here. But I remain proud that PEBFORUM continues to serve its members, including those who never post but read, learn, and benefit from the experience of others. not a small part is the shared community and hope given to each other.

As of tonight, PEBFORUM has 240,754 registered members. Over nineteen years, that is roughly 12,700 registered members per year. Some people stay for a few days. Some stay for years. Some ask a single question. Some become regular contributors. Some donate. Some simply read and move on after finding the information they need.

My biggest unrealized hope was that this community might grow into something more formal: an organization that could lobby Congress, educate the public and military members, and provide broader direct support to disabled Servicemembers and Veterans. We have seen other charitable and nonprofit organizations raise millions of dollars for their missions. PEBFORUM has not become that kind of organization. To the extent that fundraising and organizational growth did not receive enough attention, that responsibility is mine. I have always focused first on the cases, the forum, and the immediate needs of the people in front of me. I am whistful that if I could have done better at maybe getting $1-5 dollars for a one-time donation from everyone who registered, I could have done much more. I still believe, however, that this community has shown what is possible when information is shared, and people help each other.

Although I have not been able to contribute to the forum as much in recent years, I continue to fight on behalf of military disability clients at all levels of the process — MEBs, PEBs, BCMRs, BCNRs, and the U.S. Court of Federal Claims. These remain my most urgent priorities in my legal practice.

The issues that concern me most right now include the following:

1. Line-of-duty determinations. In my view, this system is broken and remains a recurring source of serious injustice. Especially for folks who move between active duty and reserve service.
2. DES/IDES adjudication of the combined or collective impact of conditions. The military still lacks a proper and uniform approach to this issue, despite the requirements of 10 U.S.C. § 1216a(b).
3. “Liberal consideration” for PTSD, MST, and TBI issues under 10 U.S.C. § 1552(h) and Doyon v. United States. In my view, the Department of Defense and the military departments are not faithfully applying the governing law in many cases.
4. CRSC effective dates and entitlement to compensation. I believe DoD and the military departments are taking the wrong approach in the wake of the Supreme Court’s decision in Soto v. United States.
5. CRSC awards being improperly limited based on “acute” versus “chronic” injury theories. This continues to be an issue in cases where the record supports a broader combat-related basis.
6. Profiling and referral to the IDES/DES. Too many cases still turn on whether the member was properly profiled, referred, and evaluated in the first place.

That list is not complete, but it is enough for today.

Thank you to every member who has shared a timeline, answered a question, corrected bad information, posted an update, encouraged someone else, donated, or simply helped keep this community alive.

And thank you, especially, to the PEBFORUM moderators, each of whom has helped countless people over the years:

bjenk
chaplaincharlie
gsfowler
Guardguy11
JMATTK
oddpedestrian
Provis
RetiredColonel-MikeT
RonG
Warrior644
xeno

This forum exists because people needed information before making decisions that could affect their health, careers, families, retirements, and futures. Nineteen years later, that need remains.

So once again:

HAPPY 19TH BIRTHDAY, PEB FORUM!!

Thank you to everyone who has made this community what it is and to everyone who will help carry it forward.

Jason Perry said:

1. “Liberal consideration” for PTSD, MST, and TBI issues under 10 U.S.C. § 1552(h) and Doyon v. United States. In my view, the Department of Defense and the military departments are not faithfully applying the governing law in many cases.

Click to expand...

Mr.Perry

My case, was tied up with DOYON. The DOD came up with the Vazarani memo. I am sure you are already aware.



COFC

D. The BCNR’s first remand decision


In 2021, the BCNR issued a new decision that again denied Mr. Hassay’s petition. AR462-


72. In its decision, the BCNR ignored the Court’s order to apply the binding DoD guidance. Instead,


the BCNR argued that “the Court misapplied this guidance as neither the Hagel Memo nor


the Kurta Memo is applicable to [Mr. Hassay’s] application.” AR470. As “support” for ignoring


the Court’s order, the BCNR cited Doyon v. United States, an unpublished and non-binding Judge


Griggsby decision that was issued after the Court’s order and has since been reversed by the Federal


Circuit. Id. (citing Doyon, No. 19-1964C, 2021 WL 120923, at *1 (Fed. Cl. Jan. 13, 2021), vacated


and remanded, 58 F.4th 1235 (Fed. Cir. 2023)). In Doyon, Judge Griggsby concluded the


opposite of this Court: that the DoD guidance does not apply to veterans like Mr. Hassay and Mr.


Doyon who are trying to convert their honorable discharges to disability discharges.7 See 2021
WL 120923 at *9-11. But Doyon “was not binding on this Court and had no relevance to the


BCNR’s decision on remand.” Second Remand Order, AR2311. Instead, as this Court explained,


“if the United States was of the view that this Court made an error when it instructed the Board to


apply the Hagel and Kurta Memos, then the proper course would have been to either request reconsideration


or to ultimately appeal the Court’s decision.” Id.


Nevertheless, the damage was done. Recognizing that the BCNR would have to issue a


new decision if the Federal Circuit reversed Doyon (it did), the Court stayed this case pending


resolution of the appeal. ECF 61. In January 2023, the Federal Circuit held that this Court got it


right: Mr. Hassay, Mr. Doyon, and similarly situated veterans are covered by the DoD guidance


and 10 U.S.C. §1552(h). Doyon, 58 F.4th at 1243-48. The Court then issued a second remand


order telling the BCNR to make a new decision that complies with the first remand order. AR2312.


On June 1, 2021, the BCNR issued its third decision denying Mr. Hassay’s petition.


AR462-72. In its decision, the BCNR disobeyed the Court’s order to apply the DoD guidance.


AR470. Instead, the BCNR argued that the Court incorrectly applied this guidance to Mr. Hassay.


As “support,” the BCNR cited Doyon v. United States, an unpublished and non-binding decision


that has since been reversed by the Federal Circuit. Id. (citing Doyon v. Unites States, 2021 WL


120923, at *1 (Fed. Cl. Jan. 13, 2021), vacated and remanded, 58 F.4th 1235 (Fed. Cir. 2023)).


The BCNR’s violation of the Court’s order caused considerable delay, which has further impacted


Mr. Hassay’s health and well-being.
------------------
APPEALS COURT-GOV statement




IV. Liberal Consideration Is Not Applicable to Fitness Findings, but


Regardless, it Does Not Influence the Outcome of this Appeal


A. Liberal Consideration Is Not Applicable to Fitness Findings


Faced with the thorough and well-supported decisions of the board and the


trial court below establishing that Mr. Hassay was fit to perform at the time of his


separation, he now seeks to prevail by expanding the principle of liberal consideration


to unfitness findings. App. Br. at 3, 21-24. But neither the statute nor the DoD


policies it adopted were intended to override the established statutory and regulatory


framework governing military disability retirement. That framework exclusively


controls such claims and contains no requirement for liberal consideration. To the


contrary, they favor findings of fitness. Moreover, after briefing before the Court of


Claims, the Vazirani memo clarified the application of liberal consideration and its


inapplicability to fitness determinations. Policy021.
Mr. Hassay presents no convincing argument that Congress intended to topple


the well-established authorities and standards for deciding disability discharge claims,


merely offering conclusory statements that the Vazirani memo is unlawful. Thus,


nothing in section 1552(h), the Kurta memo or any other DoD guidance requires the


BCNR to apply liberal consideration to Mr. Hassay’s separate and statutorily distinct


request for a disability discharge.


A disability discharge is a force management tool that depends entirely on


military judgments concerning whether a member is sufficiently fit (able to


“reasonably perform”) for a position to which the member might be assigned, with or


without a medical impairment.8 See 10 U.S.C. § 1201(a) (“Upon a determination by


the Secretary concerned that a[n eligible] member . . . is unfit to perform the duties of


the member’s office, grade, rank, or rating because of physical disability incurred while


entitled to basic pay . . . , the Secretary may retire the member, with retired pay[.]”).


An unfitness determination is not the adjudication of a benefit. To the


contrary, it results in a loss of an appointment, employment, and the investment of


time, training, and money made in and by the member. Accordingly, the Navy
prescribes that “[w]hen the evidence is not clear concerning a service member’s


fitness, attempt to resolve doubt based on further objective investigation, observation,


and evidence. Benefit of unresolved doubt shall be resolved in favor of the fitness of


the service member under the rebuttable presumption that the member desires to be


found Fit.” SECNAVINST 1450.4E § 3306(a) at 3-17; see also id. at § 3306(b)


(requiring findings be made in either direction by a preponderance of the evidence).


Nor did Doyon II “require” the Board to apply liberal consideration in this


context. App. Br. at 21. That was not the question the court resolved. The question


was whether liberal consideration applied to a DD-214 (discharge paper) “narrative


reason” block (Mr. Doyon’s had been a stigmatizing “personality disorder.”). At page


1243 of the decision, this Court decided the issue as follows:


We agree with the Claims Court that the Kurta Memo is not


limited to characterization upgrades but “requires that the


BCNR give ‘liberal consideration’ to applications seeking


discharge relief that challenge the narrative reason for a


military discharge.” Doyon, 2021 WL 120923, at *10.


However, we disagree with the Claims Court’s finding that


Mr. Doyon is not challenging the reason for his discharge.


Mr. Doyon requested the BCNR change the narrative reason


on his DD-214 form to reflect that he was discharged due to


physical disability (i.e., PTSD) rather than personality


disorder. Mr. Doyon thus challenged his narrative reason for


discharge, and such challenge is entitled to liberal


consideration under the Kurta Memo.


Further, Doyon II explicitly provided what it was not deciding: “[a]lthough this


case is narrowly about correcting Mr. Doyon’s military records to reflect a discharge


due to PTSD instead of a personality disorder, there is a larger underlying dispute
about whether Mr. Doyon was unfit, rather than unsuitable, for service at the time of


his discharge from the Navy.” Id. at 1248. As the Court explained, “Mr. Doyon


argues that once the BCNR determines that PTSD, rather than a personality disorder,


was the basis of his discharge from the Navy, he is automatically entitled to a new


separation code reflecting unfitness due to physical disability . . . , and that entitles


him to medical retirement . . . . The government disagrees, arguing that a


determination that Mr. Doyon was discharged due to PTSD does not automatically


mean that he was also unfit for service, which is a separate determination necessary


for him to receive medical retirement.” Id. (emphasis added). Thus, the court


concluded, “[t]his unfitness dispute between the parties is not properly before us at


this stage and can be addressed, if necessary, on remand.” Id.


Unlike the request Doyon II decided, Mr. Hassay did not appeal “a discharge or


dismissal [ ] based in whole or in part on matters relating to post-traumatic stress


disorder or traumatic brain injury as supporting rationale.” 10 U.S.C. § 1552(h). Mr.


Hassay separated upon reaching his service expiration with an honorable discharge,


not based on matters relating to PTSD or TBI as supporting rationale. See


Appx00044. There is simply no requirement to apply liberal consideration to assess


whether Mr. Hassay’s qualifying PTSD or MST “potentially contributed to the


circumstances resulting in a medical discharge which never occurred.” Policy021


(emphasis added).
B. The Board Liberally Considered Mr. Hassay’s Disability


Retirement Claim but Found No Evidence of Unfitness at


Discharge


In any event, liberal consideration would not change the analysis here, as the


board provided liberal consideration as appropriate, accepting Mr. Hassay’s PTSD


and MST diagnoses, and analyzing the evidence of his fitness with that in mind. The


board assumed as true that Mr. Hassay was assaulted and abused, that these events


caused PTSD, and that these health conditions were “either triggered or were


exacerbated by these experiences during [Mr. Hassay’s] military service.”9


Appx00050. The board’s 21-page opinion fully grappled with the evidence both for


and against Mr. Hassay’s claim, documented its reasoning for discounting the medical


evidence Mr. Hassay submitted and provided detailed analysis of each opinion, but


ultimately found that Mr. Hassay’s evidence was less probative on the question of


fitness than Mr. Hassay’s fitness reports showing that Mr. Hassay was successfully


performing his duties prior to discharge. Id.; see also Appx00075.


But the board’s denial of Mr. Hassay’s claim did not stem from evidentiary


issues associated with his mental health conditions. Rather, Mr. Hassay seeks to
rewrite his honorable discharge as a forced removal. And where Mr. Hassay does not


have convincing evidence to support this rewrite, he seeks to close this evidentiary


gap by inappropriately applying liberal consideration outside of the context in which it


was meant to be used.


Liberal consideration, however, does not mean that the board should abdicate


all fact-finding responsibilities, and it does not require that the board take all evidence


of Mr. Hassay’s unfitness as irrefutable, without further examination or consideration


of contrary evidence. Mr. Hassay seeks to improperly require that the board and trial


court treat his medical discharge as a default entitlement through imprecisely applying


liberal consideration as a cure-all for the defects in his suit. Accordingly, his appeal is


properly denied.


CONCLUSION


For these reasons, we respectfully request that the Court affirm the judgment


of the Court of Federal Claims.