This thread is for discussions about the Eight Year Rule.
Eight year rule
- Thread starter Jason Perry
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Jason Perry
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Title 10 USC, Sec. 1207a. "Members with over eight years of active service: eligibility for disability retirement for pre-existing conditions
(a) In the case of a member described in subsection (b) who would
be covered by section 1201, 1202, or 1203 of this title but for the
fact that the member's disability is determined to have been
incurred before the member became entitled to basic pay in the
member's current period of active duty, the disability shall be
deemed to have been incurred while the member was entitled to basic
pay and shall be so considered for purposes of determining whether
the disability was incurred in the line of duty.
(b) A member described in subsection (a) is a member with at
least eight years of active service."
Basically, what this rule means is that even if you have a condition that the Board finds Existed Prior to Service (EPTS), the condition will be rated nonetheless.
(a) In the case of a member described in subsection (b) who would
be covered by section 1201, 1202, or 1203 of this title but for the
fact that the member's disability is determined to have been
incurred before the member became entitled to basic pay in the
member's current period of active duty, the disability shall be
deemed to have been incurred while the member was entitled to basic
pay and shall be so considered for purposes of determining whether
the disability was incurred in the line of duty.
(b) A member described in subsection (a) is a member with at
least eight years of active service."
Basically, what this rule means is that even if you have a condition that the Board finds Existed Prior to Service (EPTS), the condition will be rated nonetheless.
Navy Spook
PEB Forum Regular Member
I'm going to break it down a little more.
There are certain illnesses that can only be present from birth (Genetic)[heart malformations, sickle-cell anemia, and certain colon cancers to name three.] They may just be "dormant" until later in life.
Then there are other diseases that can be genetic, or they can be caused by lifestyle, exposure to chemicals or radiation, or combinations of all factors. (Diabetes, High blood pressure, Infertility, etc.)
Over 4000 of these "type" diseases are known (Partial list - http://en.wikipedia.org/wiki/List_of_genetic_disorders )
If the military accepts you as healthy for 8 years and allows you to remain on active duty they have to treat you as getting ill while on active duty (They can't say it was pre-existing.)
Likewise, if you had an amputated leg when you went on active duty and no one noticed for 8 years they would treat the amputation as occurring in-service.
There are certain illnesses that can only be present from birth (Genetic)[heart malformations, sickle-cell anemia, and certain colon cancers to name three.] They may just be "dormant" until later in life.
Then there are other diseases that can be genetic, or they can be caused by lifestyle, exposure to chemicals or radiation, or combinations of all factors. (Diabetes, High blood pressure, Infertility, etc.)
Over 4000 of these "type" diseases are known (Partial list - http://en.wikipedia.org/wiki/List_of_genetic_disorders )
If the military accepts you as healthy for 8 years and allows you to remain on active duty they have to treat you as getting ill while on active duty (They can't say it was pre-existing.)
Likewise, if you had an amputated leg when you went on active duty and no one noticed for 8 years they would treat the amputation as occurring in-service.
Jason Perry
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Site Founder
Staff Member
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Please be aware that the 2008 NDAA has changed the language regarding the eight year rule. I will post in the near future more as well as update with the new language. If you have specific questions, ask!
Jason,
The 2008 NDAA did not change the 1207a eight year rule. That would make too much sense.
This is the issue where Congress changed the eight year rule in 10 USC 1201 and 1203 which had already been made obsolete by a 1978 change. Below is a previous write up I did on this subject:
The intent of section 1641 of the 2008 NDAA according to the Senate press release was to, "Require DOD to use the VA presumption of sound condition standard in establishing eligibility of service members for disability retirement."
Unfortunately, the law Congress changed to try and meet this intent had nothing to do with the issue at hand. Further by making the change with the language they used, Congress inadvertently reduced standards already in place by DoD policy needs to overcome the presumption of service connection.
The problem that Congress was trying to address was that of service members being denied service connection by DoD determinations that the condition existed prior to service (EPTS). There was quite a bit of press such as the “personality disorders” and other areas where DoD was egregiously making baseless EPTS determinations whereas the VA would later deem the condition service condition. See the attached LA Time article. Congress felt the solution was to require DoD to use the same presumption standards as the VA.
When you look at existing DoD/VA service connection policies, they look somewhat similar at the top level; neither DoD nor the VA will grant benefits if the condition began before service unless the condition was permanently aggravated by service. The problem is that at the execution level and in particular for congenital and hereditary conditions. The VA does not consider one to have a congenital or hereditary disease until manifestation of symptoms. DoD, on the other hand, starts off with the premise that all congenital and hereditary diseases began prior to entry regardless of when manifestations begin. Below is the relevant section from the operating manuals that captures the differences:
DoDI 1332.38
E3.P4.5.2.2. After Entry
E3.P4.5.2.2.1. Presumption. Any injury or disease discovered after a Service member enters active duty -- with the exception of congenital and hereditary conditions -- is presumed to have been incurred in the line of duty;
E3.P4.5.2.2.2. Hereditary and/or Genetic Diseases. Any hereditary and/or genetic disease shall be presumed to have been incurred prior to entry into active duty. However, any aggravation of that disease, incurred in the line of duty, beyond that determined to be due to natural progression shall be deemed service aggravated.
VA’s M-21-1MR, Part IV, Subpart II, Chapter2, Section B (2-B-14/15)
7. Determining Service Connection for Congenital, Develomental, or Hereditary Disorders, including
- The definition of congenital or developmental defects
- establishing service connection
- considering the
- development of symptoms of hereditary disease in service , and
- aggravation of a hereditary disease in service
a. Definition of Congenital or Developmental Defects
Congenital or developmental defects are normally static conditions that are incapable of improvement or deterioration.
Note: A disease, even one that is hereditary in origin, such as retinitis pigmentosa, polycystic kidney disease, sickle cell disease, or Huntington’s chorea is usually capable of improvement or deterioration.
b. Establishing Service Connection: Establish service connection, if warranted, for
- Diseases of congenital, developmental, or familial, hereditary origin that
- first manifest themselves during service during service
- or preexist service and progress at an abnormally high rate during service
c. Considering the Development of Symptoms of Hereditary Disease in Service
Consider diseases of hereditary origin to be incurred in service if the pathological sign or symptoms were manifested after entry on duty.
Even if the individual is almost certain to eventually develop a disease, a genetic or other familial predisposition does not constitute having the disease.
Only when actual symptomatololgy or signs of pathology are manifest may he/she be said to have developed the disease.
Note: At what point the individual starts to manifest signs or symptoms is a factual, medical determination that must be based upon :
- The medical evidence of record in each case, and
- Sound medical judgment
Now, take a look at what Congress changed with section 1641 of the 2008 NDAA. I have attached section 1641 for your review. Congress thought that by lowering the eight year rule in 10 USC 1201 and 1203 to six months, this would somehow provide better protection for disabled service members. I have no idea how they got that idea because this section of disability law has no bearing on the problem at hand.
Nothing was gained by Congress passing section 1641 because it changed a law that was already obsolete. Look at the parts of 10 USC 1201/1203 the 1641 provision changes, bolded below. It changes an eight year provision to six months but not the right eight year rule that deals with EPTS conditions. (The eight year EPTS rule is 10 USC 1207a.) See (iv) of the same section. It made this eight year rule in (i), obsolete in 1978.
(i) the member has at least eight years of service computed under section 1208 of this title;
(ii) the disability is the proximate result of performing active duty;
(iii) the disability was incurred in line of duty in time of war or national emergency; or
(iv) the disability was incurred in line of duty after September 14, 1978.
This eight year rule, which again has nothing to do with the compensability of EPTS conditions, has been moot since September 14, 1978 via part (iv) as line of duty = service connection. Prior to that date, if (ii) or (iii) did not apply, then any service member required 8 years to get disability benefits if the condition began while on active duty. No EPTS conditions were compensable by law prior to 20 years by DoD until 1207a came to be in the late 1990’s. Prior to 1978, if one developed cancer after entry but (i), (ii), or (iii) didn’t apply, he did not receive disability benefits. Congress change the rules and 1978 and now a service member is covered if the disability began after entry as long there were no misconduct or AWOL issues. Today a service member on orders for more than 30 days is eligible for disability coverage beginning the first day of service for any service connected condition. However, if DoD deems the condition not service connected due to EPTS, benefits are denied unless there is service connected aggravation or the member has eight years per 10 USC 1207a which I have attached as well.
Section 1641 not only changed an obsolete law, it also inadvertently lowered the DoD policy presumption standard which PEB’s are currently suppose to apply before deeming a condition EPTS and deny benefits. DoD (ASD-HA) established the definition and standard for EPTS in January 1999, via DOD 6015M.1.
5.1.23. EXISTED PRIOR TO SERVICE (EPTS). A term used to signify there is clear and unmistakable evidence that the disease or injury, or the underlying condition producing the disease or injury, existed prior to the individual's entry into military service.
The cover letter of this manual states that its definitions are mandatory for all DoD components. The Air Force disability instruction, (AFI 136-3212, 30 SEP 99) enacts this EPTS definition and standard verbatim on page 80:
Existed Prior to Service (EPTS)—A term used to signify there is clear and unmistakable evidence that the disease or injury, or the underlying condition producing the disease or injury, existed prior to the individual’s entry into military service, during a break in service, or during a period of inactive service.
AFI136-3212 further states that for conditions to be considered EPTS:
3.22.3.2. Medical authorities are in consistent and universal agreement to the cause and time of origin.
As you can see, the new language in 1641 reduces the standard from DoD’s policy of “clear and unmistakable” and codifies it with “medical evidence or judgment”. The new provision is also silent on the issue of service aggravation which could also be problematic.
DoD has stated that this new provision (1641) will not require them to use the VA presumption standard for EPTS conditions. This is demonstrated in their new DoD/VA pilot program they launched in late November. This program has the VA finding service connection and rating all conditions to include the ones the military finds unfitting. DoD has stated they will apply the VA rating to the unfitting conditions but only if they agree the condition is service connected to begin with. Then DTM for the pilot program states the following:
4.1. The DES Pilot, unless otherwise stated in this Policy Guidance, will follow the requirements promulgated in DoD Directive (DoDD) 1332.18, “Separation or Retirement for Physical Disability,” Directive-Type Memorandum, Subject: Policy Guidance for the Disability Evaluation System and Establishment of Recurring Directive-Type Memoranda, dated May 3, 2007, DoD Instruction (DoDI) 1332.38, “Physical Disability Evaluation.” DoDI 1332.39, “Application of the Veterans Administration Schedule for Rating Disabilities” shall not apply except as provided for in this DTM.
4.2. For the purpose of the DES Pilot and under the authorities granted by 10 USC, 113, 3013, 5014, and 8013, the Military Department Secretary concerned will use the DVA disability ratings awarded to each of the military unfitting conditions to determine combined DoD disability rating for all military unfitting conditions. As an exception to the above and in accordance with DoDI 1332.39, paragraphs 6.1.3 and 6.11, the Military Department Secretary concerned may adjust the DVA disability ratings awarded for conditions that result or are aggravated as a consequence of the Service member’s non-compliance with prescribed treatment or for conditions that existed prior to service (EPTS).
In conclusion;
If the intent of Congress is to make EPTS conditions compensable after six months regardless if was noted on the physical or not, then 1207a needs to be changed from eight years to six months.
If the intent od Congress is to makes EPTS conditions compensable after six months unless it was noted on the entrance physical, then the evidence/judgment language in section 1641 of the 2008 NDAA has to go. It also needs to be made perfectly clear that after eight years active duty, any EPTS condition is compensable regardless if it was on the entry physical or not as 1207a provides for today.
If the intent of Congress is to have DoD adjudicate congenital and hereditary conditions with the same presumptions as the VA, then Congress should mandate that any such conditions are service connected and compensable if manifestations do not appear until after one enters service as this is the VA standard.
Finally, please be advised that "personality disorders" would never be covered under disability benefits under DoD policy as they are not considered disabilities by DoD. These individuals are administratively separated without disability benefits even if they have over eight years of active duty per 10 USC 1207a. Even if Congress changed the eight year rule to six months in 1207a, these individuals would still be removed without disability benefits.
The 2008 NDAA did not change the 1207a eight year rule. That would make too much sense.
This is the issue where Congress changed the eight year rule in 10 USC 1201 and 1203 which had already been made obsolete by a 1978 change. Below is a previous write up I did on this subject:
The intent of section 1641 of the 2008 NDAA according to the Senate press release was to, "Require DOD to use the VA presumption of sound condition standard in establishing eligibility of service members for disability retirement."
Unfortunately, the law Congress changed to try and meet this intent had nothing to do with the issue at hand. Further by making the change with the language they used, Congress inadvertently reduced standards already in place by DoD policy needs to overcome the presumption of service connection.
The problem that Congress was trying to address was that of service members being denied service connection by DoD determinations that the condition existed prior to service (EPTS). There was quite a bit of press such as the “personality disorders” and other areas where DoD was egregiously making baseless EPTS determinations whereas the VA would later deem the condition service condition. See the attached LA Time article. Congress felt the solution was to require DoD to use the same presumption standards as the VA.
When you look at existing DoD/VA service connection policies, they look somewhat similar at the top level; neither DoD nor the VA will grant benefits if the condition began before service unless the condition was permanently aggravated by service. The problem is that at the execution level and in particular for congenital and hereditary conditions. The VA does not consider one to have a congenital or hereditary disease until manifestation of symptoms. DoD, on the other hand, starts off with the premise that all congenital and hereditary diseases began prior to entry regardless of when manifestations begin. Below is the relevant section from the operating manuals that captures the differences:
DoDI 1332.38
E3.P4.5.2.2. After Entry
E3.P4.5.2.2.1. Presumption. Any injury or disease discovered after a Service member enters active duty -- with the exception of congenital and hereditary conditions -- is presumed to have been incurred in the line of duty;
E3.P4.5.2.2.2. Hereditary and/or Genetic Diseases. Any hereditary and/or genetic disease shall be presumed to have been incurred prior to entry into active duty. However, any aggravation of that disease, incurred in the line of duty, beyond that determined to be due to natural progression shall be deemed service aggravated.
VA’s M-21-1MR, Part IV, Subpart II, Chapter2, Section B (2-B-14/15)
7. Determining Service Connection for Congenital, Develomental, or Hereditary Disorders, including
- The definition of congenital or developmental defects
- establishing service connection
- considering the
- development of symptoms of hereditary disease in service , and
- aggravation of a hereditary disease in service
a. Definition of Congenital or Developmental Defects
Congenital or developmental defects are normally static conditions that are incapable of improvement or deterioration.
Note: A disease, even one that is hereditary in origin, such as retinitis pigmentosa, polycystic kidney disease, sickle cell disease, or Huntington’s chorea is usually capable of improvement or deterioration.
b. Establishing Service Connection: Establish service connection, if warranted, for
- Diseases of congenital, developmental, or familial, hereditary origin that
- first manifest themselves during service during service
- or preexist service and progress at an abnormally high rate during service
c. Considering the Development of Symptoms of Hereditary Disease in Service
Consider diseases of hereditary origin to be incurred in service if the pathological sign or symptoms were manifested after entry on duty.
Even if the individual is almost certain to eventually develop a disease, a genetic or other familial predisposition does not constitute having the disease.
Only when actual symptomatololgy or signs of pathology are manifest may he/she be said to have developed the disease.
Note: At what point the individual starts to manifest signs or symptoms is a factual, medical determination that must be based upon :
- The medical evidence of record in each case, and
- Sound medical judgment
Now, take a look at what Congress changed with section 1641 of the 2008 NDAA. I have attached section 1641 for your review. Congress thought that by lowering the eight year rule in 10 USC 1201 and 1203 to six months, this would somehow provide better protection for disabled service members. I have no idea how they got that idea because this section of disability law has no bearing on the problem at hand.
Nothing was gained by Congress passing section 1641 because it changed a law that was already obsolete. Look at the parts of 10 USC 1201/1203 the 1641 provision changes, bolded below. It changes an eight year provision to six months but not the right eight year rule that deals with EPTS conditions. (The eight year EPTS rule is 10 USC 1207a.) See (iv) of the same section. It made this eight year rule in (i), obsolete in 1978.
(i) the member has at least eight years of service computed under section 1208 of this title;
(ii) the disability is the proximate result of performing active duty;
(iii) the disability was incurred in line of duty in time of war or national emergency; or
(iv) the disability was incurred in line of duty after September 14, 1978.
This eight year rule, which again has nothing to do with the compensability of EPTS conditions, has been moot since September 14, 1978 via part (iv) as line of duty = service connection. Prior to that date, if (ii) or (iii) did not apply, then any service member required 8 years to get disability benefits if the condition began while on active duty. No EPTS conditions were compensable by law prior to 20 years by DoD until 1207a came to be in the late 1990’s. Prior to 1978, if one developed cancer after entry but (i), (ii), or (iii) didn’t apply, he did not receive disability benefits. Congress change the rules and 1978 and now a service member is covered if the disability began after entry as long there were no misconduct or AWOL issues. Today a service member on orders for more than 30 days is eligible for disability coverage beginning the first day of service for any service connected condition. However, if DoD deems the condition not service connected due to EPTS, benefits are denied unless there is service connected aggravation or the member has eight years per 10 USC 1207a which I have attached as well.
Section 1641 not only changed an obsolete law, it also inadvertently lowered the DoD policy presumption standard which PEB’s are currently suppose to apply before deeming a condition EPTS and deny benefits. DoD (ASD-HA) established the definition and standard for EPTS in January 1999, via DOD 6015M.1.
5.1.23. EXISTED PRIOR TO SERVICE (EPTS). A term used to signify there is clear and unmistakable evidence that the disease or injury, or the underlying condition producing the disease or injury, existed prior to the individual's entry into military service.
The cover letter of this manual states that its definitions are mandatory for all DoD components. The Air Force disability instruction, (AFI 136-3212, 30 SEP 99) enacts this EPTS definition and standard verbatim on page 80:
Existed Prior to Service (EPTS)—A term used to signify there is clear and unmistakable evidence that the disease or injury, or the underlying condition producing the disease or injury, existed prior to the individual’s entry into military service, during a break in service, or during a period of inactive service.
AFI136-3212 further states that for conditions to be considered EPTS:
3.22.3.2. Medical authorities are in consistent and universal agreement to the cause and time of origin.
As you can see, the new language in 1641 reduces the standard from DoD’s policy of “clear and unmistakable” and codifies it with “medical evidence or judgment”. The new provision is also silent on the issue of service aggravation which could also be problematic.
DoD has stated that this new provision (1641) will not require them to use the VA presumption standard for EPTS conditions. This is demonstrated in their new DoD/VA pilot program they launched in late November. This program has the VA finding service connection and rating all conditions to include the ones the military finds unfitting. DoD has stated they will apply the VA rating to the unfitting conditions but only if they agree the condition is service connected to begin with. Then DTM for the pilot program states the following:
4.1. The DES Pilot, unless otherwise stated in this Policy Guidance, will follow the requirements promulgated in DoD Directive (DoDD) 1332.18, “Separation or Retirement for Physical Disability,” Directive-Type Memorandum, Subject: Policy Guidance for the Disability Evaluation System and Establishment of Recurring Directive-Type Memoranda, dated May 3, 2007, DoD Instruction (DoDI) 1332.38, “Physical Disability Evaluation.” DoDI 1332.39, “Application of the Veterans Administration Schedule for Rating Disabilities” shall not apply except as provided for in this DTM.
4.2. For the purpose of the DES Pilot and under the authorities granted by 10 USC, 113, 3013, 5014, and 8013, the Military Department Secretary concerned will use the DVA disability ratings awarded to each of the military unfitting conditions to determine combined DoD disability rating for all military unfitting conditions. As an exception to the above and in accordance with DoDI 1332.39, paragraphs 6.1.3 and 6.11, the Military Department Secretary concerned may adjust the DVA disability ratings awarded for conditions that result or are aggravated as a consequence of the Service member’s non-compliance with prescribed treatment or for conditions that existed prior to service (EPTS).
In conclusion;
If the intent of Congress is to make EPTS conditions compensable after six months regardless if was noted on the physical or not, then 1207a needs to be changed from eight years to six months.
If the intent od Congress is to makes EPTS conditions compensable after six months unless it was noted on the entrance physical, then the evidence/judgment language in section 1641 of the 2008 NDAA has to go. It also needs to be made perfectly clear that after eight years active duty, any EPTS condition is compensable regardless if it was on the entry physical or not as 1207a provides for today.
If the intent of Congress is to have DoD adjudicate congenital and hereditary conditions with the same presumptions as the VA, then Congress should mandate that any such conditions are service connected and compensable if manifestations do not appear until after one enters service as this is the VA standard.
Finally, please be advised that "personality disorders" would never be covered under disability benefits under DoD policy as they are not considered disabilities by DoD. These individuals are administratively separated without disability benefits even if they have over eight years of active duty per 10 USC 1207a. Even if Congress changed the eight year rule to six months in 1207a, these individuals would still be removed without disability benefits.
Jason Perry
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Mike,
Thanks for posting that. I haven't heard of any change in the treatment of cases, but I am still concerned that they may try to "give with one hand and take away with the other."
I hope this is all mooted by the fixes you alluded that Congress is contemplating. Until they start treating folks differently and deviating from the current policy, I would not be overly concerned.
Also, note that there is strong case law supporting the proposition that when agency rules are more generous than statute, the agency rules are binding. Since they have not changed the DoDI's or Service Regulations, I would submit the same treatment is called for if more beneficial to the Servicemember.
When I have a chance I will write more on this topic, but I wanted to at least alert folks that there are potential issues out there.
Any chance of posting the LA Times article you mentioned?
Thanks for posting that. I haven't heard of any change in the treatment of cases, but I am still concerned that they may try to "give with one hand and take away with the other."
I hope this is all mooted by the fixes you alluded that Congress is contemplating. Until they start treating folks differently and deviating from the current policy, I would not be overly concerned.
Also, note that there is strong case law supporting the proposition that when agency rules are more generous than statute, the agency rules are binding. Since they have not changed the DoDI's or Service Regulations, I would submit the same treatment is called for if more beneficial to the Servicemember.
When I have a chance I will write more on this topic, but I wanted to at least alert folks that there are potential issues out there.
Any chance of posting the LA Times article you mentioned?
US Military Practices Genetic Discrimination in Denying Benefits
By Karen Kaplan
The Los Angeles Times
Saturday 18 August 2007
Those medically discharged with genetic diseases are left without disability or retirement benefits. Some are fighting back.
Eric Miller's career as an Army Ranger wasn't ended by a battlefield wound, but his DNA.
Lurking in his genes was a mutation that made him vulnerable to uncontrolled tumor growth. After suffering back pain during a tour in Afghanistan, he underwent three surgeries to remove tumors from his brain and spine that left him with numbness throughout the left side of his body.
So began his journey into a dreaded scenario of the genetic age.
Because he was born with the mutation, the Army argued it bore no responsibility for his illness and medically discharged him in 2005 without the disability benefits or health insurance he needed to fight his disease.
"The Army didn't give me anything," said Miller, 28, a seven-year veteran who is training to join the Tennessee Highway Patrol.
While genetic discrimination is banned in most cases throughout the country, it is alive and well in the U.S. military.
For more than 20 years, the armed forces have held a policy that specifically denies disability benefits to servicemen and women with congenital or hereditary conditions. The practice would be illegal in almost any other workplace.
There is one exception, instituted in 1999, that grants benefits to personnel who have served eight years.
"You could be in the military and be a six-pack-a-day smoker, and if you come down with emphysema, 'That's OK. We've got you covered,' " said Kathy Hudson, director of the Genetics and Public Policy Center at Johns Hopkins University."But if you happen to have a disease where there is an identified genetic contribution, you are screwed."
Representatives from the Pentagon declined multiple requests to discuss the policy.
A High Cost
The regulation appears to have stemmed from an effort to protect the armed services from becoming a magnet for people who knew they would come down with costly genetic illnesses, according to Dr. Mark Nunes, who headed the Air Force Genetics Center's DNA diagnostic laboratory at Keesler Air Force Base in Mississippi.
The threat is almost certainly small. A 1999 military analysis estimated that about 250 service members are discharged each year for health problems involving a genetic component. Disability payments for them would amount to $1.7 million the first year and rise each year after that as more veterans join the rolls. Healthcare expenditures would have added to the tab.
"Maybe they didn't want to foot the bill for my disability," said Miller, whose rare genetic disease is called Von Hippel-Lindau syndrome. "It's saving money for them. I'm just one less soldier that they have to dish out compensation to."
But the cost for individuals medically discharged can be high. While some eventually receive benefits from Veterans Affairs or private insurers, the policy leaves Miller and others scrambling to find treatment for complex medical conditions at the same time they are reestablishing their lives as civilians without having the benefit of Tricare, the military's health insurance.
"It seems particularly draconian to say, 'Well, you're out with no benefits,' whereas another person with the same injury gets the coverage simply because we don't know there's a gene in there that's causing this," said Alex Capron, a professor who studies healthcare law, policy and ethics at USC.
The fear of genetic discrimination coincides with early efforts to decode the human genome more than 25 years ago.
It took no great insight to realize that a complete inventory of life's building blocks would not only revolutionize the practice of medicine, but also mark individuals whose genes put them at risk for myriad diseases.
Congress took action in 1996, banning genetic discrimination in group health plans, and in 2000, President Clinton signed an executive order forbidding the practice against the federal government's nearly 2 million civilian employees. Similar laws against genetic discrimination swept through 31 states.
Congress is working to extend the federal law with the Genetic Information Nondiscrimination Act, which would protect people with individual medical policies. The act has passed the House and awaits a vote in the Senate.
Even if it becomes law, it will not apply to military personnel.
The Defense Department's original policy did not consider genetics when determining whether a soldier deserved medical retirement, assuming that any disease discovered during service had been incurred in the line of duty.
There was little reason to consider genetic mutations, since few were known. But by 1986, as scientists associated more sections of DNA with particular diseases, the military declared that it was not responsible for soldiers with "congenital and hereditary" conditions.
At the urging of the National Human Genome Research Institute, the Defense Department proposed in 1999 that anyone who had served for 180 days be eligible for medical retirement, even if their health problem had a genetic component, said Barbara Fuller, assistant director for ethics at NHGRI, part of the National Institutes of Health.
But the Office of Management and Budget decided on the longer, 8-year term to conform with other military health and retirement guidelines, according to an OMB official.
Some genetic discrimination is unavoidable given the demands of military service, said Nunes, now a geneticist at Ohio State University.
"If you have achondroplasia - if you're a dwarf - you're not eligible for military service," he said. "If you have hereditary hearing loss, you're not eligible for military service. If you have color blindness, you're not eligible to fly an airplane. Obviously, there's genetic discrimination in the military, for good reason."
But Nunes said the armed forces' disability policy was flawed by a fundamental misunderstanding about the biology of inherited diseases.
Only in a few cases, such as Huntington's disease, does a specific mutation in a particular stretch of DNA guarantee the onset of illness.
In most cases, a faulty gene increases an individual's risk of developing a disease, but does not ensure it. Typically, an external event is necessary to trigger the onset of a medical condition.
Such was the case with an Army helicopter gunship pilot who was reassigned to desk duty after she became too pregnant to fly.
Dr. Melissa Fries, an Air Force geneticist who became involved in the case, said the pilot developed a blood clot in her leg - a typical complication of pregnancy that is exacerbated by inactivity.
She was diagnosed with chronic thrombophlebitis, a condition that disqualified her from flying. The pilot, who declined to discuss her case, decided to retire from the Army.
As part of her medical work-up, doctors discovered she had a genetic mutation for Factor V Leiden, which is found in 5% of Caucasians and increases their risk of developing blood clots.
An Army physical evaluation board, which determines disability benefits, denied her claim because of the mutation.
Her military doctors were stunned since her thrombophlebitis was probably caused by her pregnancy and desk job. They downplayed the role of her mutation because 99% of Factor V Leiden carriers never develop blood clots.
Testing Discouraged
Military doctors now discourage their patients from getting potentially life-saving genetic tests, undermining their ability to provide top-notch care.
"If someone called me up with regard to genetic testing, I had to say, 'That might not be something you want to pursue,' " Nunes said. "That's very hard to say."
In her 26 years in the Air Force, Fries said she often dissuaded women from getting tested for the BRCA1 and BRCA2 mutations that dramatically increase their risk of developing breast cancer.
She recalled counseling a 22-year-old soldier whose father had just been diagnosed with Huntington's disease. The soldier had 50-50 odds of developing the disease.
A neurologist at Walter Reed Army Medical Center ordered a genetic test for Huntington's, and it turned up positive.
"He was discharged from the military on the basis of the Huntington's disease gene even though, at that level of gene expansion, there was expected to be another 25 years before he would display any symptoms," said Fries, now director of genetics and fetal medicine at Washington Hospital Center in Washington, D.C.
For many in the military, the best course is to simply refuse all genetic tests, even though they may be needed for an accurate diagnosis, she said.
Getting genetic tests through civilian channels is not an option because it would violate the uniform code of military justice.
"You could get court-martialed if it were revealed that you had sought medical treatment or testing outside the system," Nunes said.
Most soldiers have no idea about the genetic rule, much less have a reason to challenge it. For those who choose to fight, it can be arduous process.
No one contested the policy until Marine Gunnery Sgt. Jay Platt did in 1998.
Platt had lost an eye and a testicle to Von Hippel-Lindau syndrome before doctors told him he had a malignant tumor in his left kidney and four benign tumors on his brain. He knew his 15-year Marine career was over.
"If you want to go ahead and medically retire me, I'm not going to fight it," he told his doctors.
But the Marines refused. Instead, he was medically discharged without any benefits because his genetic disease was a preexisting condition.
A discharge have would cut Platt off from Tricare, which allows members to seek care from a large network of providers, just like a civilian HMO.
"That was my biggest thing," he said. "I needed to have treatments for the rest of my life."
With the help experts from NHGRI, Platt appealed his case to an physical evaluation board. His doctors said that although the mutation predisposed him to Von Hippel-Lindau syndrome, some aspect of his service - such as repeated exposure to the solvents used to clean weapons - could have triggered the tumors.
Platt ultimately won his case and was granted disability payments of about $2,000 a month. He now travels the country as a motivational speaker talking about his fight against his disease.
The helicopter pilot with the Factor V Leiden mutation also appealed her case, going all the way to the Army surgeon general to win a medical retirement.
But Miller, the Army ranger, did not fare so well. Even though he had the same disease as Platt, he lost his appeal and was discharged without benefits in 2005.
He still has to monitor his slow-growing tumors and be on the lookout for new ones. But without Tricare coverage, he can't afford to see a civilian doctor close to his home in Oak Ridge, Tenn.
Instead, he travels an hour and a half to the Veterans Affairs facility in Johnson City at least twice a year. Every so often, he makes the three-hour drive to another VA facility in Lexington, Ky., to see a neurologist with expertise in his disease.
The worry never leaves him. His genes guarantee that he will never be cured.
By Karen Kaplan
The Los Angeles Times
Saturday 18 August 2007
Those medically discharged with genetic diseases are left without disability or retirement benefits. Some are fighting back.
Eric Miller's career as an Army Ranger wasn't ended by a battlefield wound, but his DNA.
Lurking in his genes was a mutation that made him vulnerable to uncontrolled tumor growth. After suffering back pain during a tour in Afghanistan, he underwent three surgeries to remove tumors from his brain and spine that left him with numbness throughout the left side of his body.
So began his journey into a dreaded scenario of the genetic age.
Because he was born with the mutation, the Army argued it bore no responsibility for his illness and medically discharged him in 2005 without the disability benefits or health insurance he needed to fight his disease.
"The Army didn't give me anything," said Miller, 28, a seven-year veteran who is training to join the Tennessee Highway Patrol.
While genetic discrimination is banned in most cases throughout the country, it is alive and well in the U.S. military.
For more than 20 years, the armed forces have held a policy that specifically denies disability benefits to servicemen and women with congenital or hereditary conditions. The practice would be illegal in almost any other workplace.
There is one exception, instituted in 1999, that grants benefits to personnel who have served eight years.
"You could be in the military and be a six-pack-a-day smoker, and if you come down with emphysema, 'That's OK. We've got you covered,' " said Kathy Hudson, director of the Genetics and Public Policy Center at Johns Hopkins University."But if you happen to have a disease where there is an identified genetic contribution, you are screwed."
Representatives from the Pentagon declined multiple requests to discuss the policy.
A High Cost
The regulation appears to have stemmed from an effort to protect the armed services from becoming a magnet for people who knew they would come down with costly genetic illnesses, according to Dr. Mark Nunes, who headed the Air Force Genetics Center's DNA diagnostic laboratory at Keesler Air Force Base in Mississippi.
The threat is almost certainly small. A 1999 military analysis estimated that about 250 service members are discharged each year for health problems involving a genetic component. Disability payments for them would amount to $1.7 million the first year and rise each year after that as more veterans join the rolls. Healthcare expenditures would have added to the tab.
"Maybe they didn't want to foot the bill for my disability," said Miller, whose rare genetic disease is called Von Hippel-Lindau syndrome. "It's saving money for them. I'm just one less soldier that they have to dish out compensation to."
But the cost for individuals medically discharged can be high. While some eventually receive benefits from Veterans Affairs or private insurers, the policy leaves Miller and others scrambling to find treatment for complex medical conditions at the same time they are reestablishing their lives as civilians without having the benefit of Tricare, the military's health insurance.
"It seems particularly draconian to say, 'Well, you're out with no benefits,' whereas another person with the same injury gets the coverage simply because we don't know there's a gene in there that's causing this," said Alex Capron, a professor who studies healthcare law, policy and ethics at USC.
The fear of genetic discrimination coincides with early efforts to decode the human genome more than 25 years ago.
It took no great insight to realize that a complete inventory of life's building blocks would not only revolutionize the practice of medicine, but also mark individuals whose genes put them at risk for myriad diseases.
Congress took action in 1996, banning genetic discrimination in group health plans, and in 2000, President Clinton signed an executive order forbidding the practice against the federal government's nearly 2 million civilian employees. Similar laws against genetic discrimination swept through 31 states.
Congress is working to extend the federal law with the Genetic Information Nondiscrimination Act, which would protect people with individual medical policies. The act has passed the House and awaits a vote in the Senate.
Even if it becomes law, it will not apply to military personnel.
The Defense Department's original policy did not consider genetics when determining whether a soldier deserved medical retirement, assuming that any disease discovered during service had been incurred in the line of duty.
There was little reason to consider genetic mutations, since few were known. But by 1986, as scientists associated more sections of DNA with particular diseases, the military declared that it was not responsible for soldiers with "congenital and hereditary" conditions.
At the urging of the National Human Genome Research Institute, the Defense Department proposed in 1999 that anyone who had served for 180 days be eligible for medical retirement, even if their health problem had a genetic component, said Barbara Fuller, assistant director for ethics at NHGRI, part of the National Institutes of Health.
But the Office of Management and Budget decided on the longer, 8-year term to conform with other military health and retirement guidelines, according to an OMB official.
Some genetic discrimination is unavoidable given the demands of military service, said Nunes, now a geneticist at Ohio State University.
"If you have achondroplasia - if you're a dwarf - you're not eligible for military service," he said. "If you have hereditary hearing loss, you're not eligible for military service. If you have color blindness, you're not eligible to fly an airplane. Obviously, there's genetic discrimination in the military, for good reason."
But Nunes said the armed forces' disability policy was flawed by a fundamental misunderstanding about the biology of inherited diseases.
Only in a few cases, such as Huntington's disease, does a specific mutation in a particular stretch of DNA guarantee the onset of illness.
In most cases, a faulty gene increases an individual's risk of developing a disease, but does not ensure it. Typically, an external event is necessary to trigger the onset of a medical condition.
Such was the case with an Army helicopter gunship pilot who was reassigned to desk duty after she became too pregnant to fly.
Dr. Melissa Fries, an Air Force geneticist who became involved in the case, said the pilot developed a blood clot in her leg - a typical complication of pregnancy that is exacerbated by inactivity.
She was diagnosed with chronic thrombophlebitis, a condition that disqualified her from flying. The pilot, who declined to discuss her case, decided to retire from the Army.
As part of her medical work-up, doctors discovered she had a genetic mutation for Factor V Leiden, which is found in 5% of Caucasians and increases their risk of developing blood clots.
An Army physical evaluation board, which determines disability benefits, denied her claim because of the mutation.
Her military doctors were stunned since her thrombophlebitis was probably caused by her pregnancy and desk job. They downplayed the role of her mutation because 99% of Factor V Leiden carriers never develop blood clots.
Testing Discouraged
Military doctors now discourage their patients from getting potentially life-saving genetic tests, undermining their ability to provide top-notch care.
"If someone called me up with regard to genetic testing, I had to say, 'That might not be something you want to pursue,' " Nunes said. "That's very hard to say."
In her 26 years in the Air Force, Fries said she often dissuaded women from getting tested for the BRCA1 and BRCA2 mutations that dramatically increase their risk of developing breast cancer.
She recalled counseling a 22-year-old soldier whose father had just been diagnosed with Huntington's disease. The soldier had 50-50 odds of developing the disease.
A neurologist at Walter Reed Army Medical Center ordered a genetic test for Huntington's, and it turned up positive.
"He was discharged from the military on the basis of the Huntington's disease gene even though, at that level of gene expansion, there was expected to be another 25 years before he would display any symptoms," said Fries, now director of genetics and fetal medicine at Washington Hospital Center in Washington, D.C.
For many in the military, the best course is to simply refuse all genetic tests, even though they may be needed for an accurate diagnosis, she said.
Getting genetic tests through civilian channels is not an option because it would violate the uniform code of military justice.
"You could get court-martialed if it were revealed that you had sought medical treatment or testing outside the system," Nunes said.
Most soldiers have no idea about the genetic rule, much less have a reason to challenge it. For those who choose to fight, it can be arduous process.
No one contested the policy until Marine Gunnery Sgt. Jay Platt did in 1998.
Platt had lost an eye and a testicle to Von Hippel-Lindau syndrome before doctors told him he had a malignant tumor in his left kidney and four benign tumors on his brain. He knew his 15-year Marine career was over.
"If you want to go ahead and medically retire me, I'm not going to fight it," he told his doctors.
But the Marines refused. Instead, he was medically discharged without any benefits because his genetic disease was a preexisting condition.
A discharge have would cut Platt off from Tricare, which allows members to seek care from a large network of providers, just like a civilian HMO.
"That was my biggest thing," he said. "I needed to have treatments for the rest of my life."
With the help experts from NHGRI, Platt appealed his case to an physical evaluation board. His doctors said that although the mutation predisposed him to Von Hippel-Lindau syndrome, some aspect of his service - such as repeated exposure to the solvents used to clean weapons - could have triggered the tumors.
Platt ultimately won his case and was granted disability payments of about $2,000 a month. He now travels the country as a motivational speaker talking about his fight against his disease.
The helicopter pilot with the Factor V Leiden mutation also appealed her case, going all the way to the Army surgeon general to win a medical retirement.
But Miller, the Army ranger, did not fare so well. Even though he had the same disease as Platt, he lost his appeal and was discharged without benefits in 2005.
He still has to monitor his slow-growing tumors and be on the lookout for new ones. But without Tricare coverage, he can't afford to see a civilian doctor close to his home in Oak Ridge, Tenn.
Instead, he travels an hour and a half to the Veterans Affairs facility in Johnson City at least twice a year. Every so often, he makes the three-hour drive to another VA facility in Lexington, Ky., to see a neurologist with expertise in his disease.
The worry never leaves him. His genes guarantee that he will never be cured.
Alcon,
Unfortunately I can relate. I was a Army reservist for four years and joined the active force in 1999-2005 as a helicopter pilot. I was sent home from a foreign country for chronic foot problems, that I been having consistantly having throughout my career. I was seen by a neurologist and he discovered through DNA that I had a rare disease of a De-nova mutation, we never known that I ever had this. I was medically discharged first of all with a EPTS rating. I through a fit and demanded a review after showing documentation of dozens and dozens of injuries to my feet. I decided to fight the decision in Washington and the day before I was to arrive I was notified by the review officer there that they decided to award my injuries as service connected with a zero percent rating and that I would be covered from the VA throughout my life for service conneceted injuries/disease. He made it sound like a dream come true by saying it will expedite things also and allow you to get on with your life. Now I am unemployed and barely able to ambulate in need of a couple surgeries. I am kicking myself in the buttocks that I can't support my family of five and my family's wellfare is diminishing because of my service connected disease that should of been a medical retirement. For those of you who are going through this process, I am pleading with you to fight for your rights !!!! I hate to say I was afraid of the system and how the army disability can affect you . Fight, fight, fight, Oh Yeah I was 6 months from 8 years active duty rule........
Please excuse my writing if it's not punctuationally correct.
Good Luck
Been through it
Unfortunately I can relate. I was a Army reservist for four years and joined the active force in 1999-2005 as a helicopter pilot. I was sent home from a foreign country for chronic foot problems, that I been having consistantly having throughout my career. I was seen by a neurologist and he discovered through DNA that I had a rare disease of a De-nova mutation, we never known that I ever had this. I was medically discharged first of all with a EPTS rating. I through a fit and demanded a review after showing documentation of dozens and dozens of injuries to my feet. I decided to fight the decision in Washington and the day before I was to arrive I was notified by the review officer there that they decided to award my injuries as service connected with a zero percent rating and that I would be covered from the VA throughout my life for service conneceted injuries/disease. He made it sound like a dream come true by saying it will expedite things also and allow you to get on with your life. Now I am unemployed and barely able to ambulate in need of a couple surgeries. I am kicking myself in the buttocks that I can't support my family of five and my family's wellfare is diminishing because of my service connected disease that should of been a medical retirement. For those of you who are going through this process, I am pleading with you to fight for your rights !!!! I hate to say I was afraid of the system and how the army disability can affect you . Fight, fight, fight, Oh Yeah I was 6 months from 8 years active duty rule........
Please excuse my writing if it's not punctuationally correct.
Good Luck
Been through it
Mgbemt,
Board For Correction of Military Records and other Admin appeals - Physical Evaluation Board Forum This section of the forum might help you. It sounds like they managed to pull a fast one, but there are ways to correct their wrong doings.
Board For Correction of Military Records and other Admin appeals - Physical Evaluation Board Forum This section of the forum might help you. It sounds like they managed to pull a fast one, but there are ways to correct their wrong doings.
This NDAA doesnt apply?
Sec. 1554a. Review of separation with disability rating of 20 percent disabled or less
Sec. 1554a. Review of separation with disability rating of 20 percent disabled or less
- `(a) In General- (1) The Secretary of Defense shall establish within the Office of the Secretary of Defense a board of review to review the disability determinations of covered individuals by Physical Evaluation Boards. The board shall be known as the `Physical Disability Board of Review'.
- `(2) The Physical Disability Board of Review shall consist of not less than three members appointed by the Secretary.
- `(b) Covered Individuals- For purposes of this section, covered individuals are members and former members of the armed forces who, during the period beginning on September 11, 2001, and ending on December 31, 2009--
- `(1) are separated from the armed forces due to unfitness for duty due to a medical condition with a disability rating of 20 percent disabled or less; and
- `(2) are found to be not eligible for retirement.
- `(c) Review- (1) Upon the request of a covered individual, or a surviving spouse, next of kin, or legal representative of a covered individual, the Physical Disability Board of Review shall review the findings and decisions of the Physical Evaluation Board with respect to such covered individual. Subject to paragraph (3), upon its own motion, the Physical Disability Board of Review may review the findings and decisions of the Physical Evaluation Board with respect to a covered individual.
- `(2) The review by the Physical Disability Board of Review under paragraph (1) shall be based on the records of the armed force concerned and such other evidence as may be presented to the Physical Disability Board of Review. A witness may present evidence to the Board by affidavit or by any other means considered acceptable by the Secretary of Defense.
- `(3) If the Physical Disability Board of Review proposes to review, upon its own motion, the findings and decisions of the Physical Evaluation Board with respect to a covered individual, the Physical Disability Board of Review shall notify the covered individual, or a surviving spouse, next of kin, or legal representative of the covered individual, of the proposed review and obtain the consent of the covered individual or a surviving spouse, next of kin, or legal representative of the covered individual before proceeding with the review.
- `(4) With respect to any review by the Physical Disability Board of Review of the findings and decisions of the Physical Evaluation Board with respect to a covered individual, whether initiated at the request of the covered individual or a surviving spouse, next of kin, or legal representative of the covered individual or initiated by the Physical Disability Board of Review, the Physical Disability Board of Review shall notify the covered individual or a surviving spouse, next of kin, or legal representative of the covered individual that, as a result of the request or consent, the covered individual or a surviving spouse, next of kin, or legal representative of the covered individual may not seek relief from the Board for Correction of Military Records operated by the Secretary concerned.
- `(d) Authorized Recommendations- The Physical Disability Board of Review may, as a result of its findings under a review under subsection (c), recommend to the Secretary concerned the following (as applicable) with respect to a covered individual:
- `(1) No recharacterization of the separation of such individual or modification of the disability rating previously assigned such individual.
- `(2) The recharacterization of the separation of such individual to retirement for disability.
- `(3) The modification of the disability rating previously assigned such individual by the Physical Evaluation Board concerned, which modified disability rating may not be a reduction of the disability rating previously assigned such individual by that Physical Evaluation Board.
- `(4) The issuance of a new disability rating for such individual.
- `(e) Correction of Military Records- (1) The Secretary concerned may correct the military records of a covered individual in accordance with a recommendation made by the Physical Disability Board of Review under subsection (d). Any such correction may be made effective as of the effective date of the action taken on the report of the Physical Evaluation Board to which such recommendation relates.
- `(2) In the case of a member previously separated pursuant to the findings and decision of a Physical Evaluation Board together with a lump-sum or other payment of back pay and allowances at separation, the amount of pay or other monetary benefits to which such member would be entitled based on the member's military record as corrected shall be reduced to take into account receipt of such lump-sum or other payment in such manner as the Secretary of Defense considers appropriate.
- `(3) If the Physical Disability Board of Review makes a recommendation not to correct the military records of a covered individual, the action taken on the report of the Physical Evaluation Board to which such recommendation relates shall be treated as final as of the date of such action.
- `(f) Regulations- (1) This section shall be carried out in accordance with regulations prescribed by the Secretary of Defense.
- `(2) The regulations under paragraph (1) shall specify reasonable deadlines for the performance of reviews required by this section.
- `(3) The regulations under paragraph (1) shall specify the effect of a determination or pending determination of a Physical Evaluation Board on considerations by boards for correction of military records under section 1552 of this title.'.
- (2) CLERICAL AMENDMENT- The table of sections at the beginning of chapter 79 of such title is amended by inserting after the item relating to section 1554 the following new item:
- `1554a. Review of separation with disability rating of 20 percent disabled or less.'.
- (b) Implementation- The Secretary of Defense shall establish the board of review required by section 1554a of title 10, United States Code (as added by subsection (a)), and prescribe the regulations required by such section, not later than 90 days after the date of the enactment of this Act.
All,
I thank you for your response. I do have ratings through the VA of 60 percent (as of now). I realize the Dole review doesn't apply to my cicumstances.
My main objective is more for those of you who are going through the whole PEB process now not to be afraid, unfortunately like I was (ashamed to admit it).
I sincerely wish all that have given themselves selflessly to our country the ability to get the undevided support of all our government entities to include medically, financially morally when you need them. I am going to make a pact to pursue the fight to get what our soldiers deserve coming out of the military. Thanks to all of you for your dedication.
Fellow soldier
I thank you for your response. I do have ratings through the VA of 60 percent (as of now). I realize the Dole review doesn't apply to my cicumstances.
My main objective is more for those of you who are going through the whole PEB process now not to be afraid, unfortunately like I was (ashamed to admit it).
I sincerely wish all that have given themselves selflessly to our country the ability to get the undevided support of all our government entities to include medically, financially morally when you need them. I am going to make a pact to pursue the fight to get what our soldiers deserve coming out of the military. Thanks to all of you for your dedication.
Fellow soldier
First, the 1554a DOD Disability Review Board did not come from the Dole Shalala Commission. It came from the Independent Review Group and the VDBC. I made presentations to both of these commissions and recommended a DoD level board be established to fix past mistakes and to ensure uniformity in Service PEB decisons. The law passed by Congress missed the mark on a couple of points as I explianed in feedback that I have posted below. However, it did included members like you and you are indeed eligible for this review because you received a DoD disability rating of less than 30% since September 11 2001.
For what did recieve the 60% VA rating? Was it all for what the Army found you unfit for or were there other issues? If there were other issues, what did the VA rate the conditions for which the Army found you unfit.
Mike
Feedback for section 1643 of 2008 NDAA:
Section 1643 only requires review of disability cases rated below 30%.
Section 1643 should have required the review of EPTS cases as well as recommended on page 32 of the final report of the Independent Review Group:
The Under Secretary of Defense (Personnel & Readiness) should conduct a quality assurance review all (Army, Navy/Marine Corps, and Air Force) Disability Evaluation System decisions of 0, 10, or 20 percent disability and Existed Prior to Service (EPTS) cases since 2001 to ensure consistency, fairness, and compliance with applicable regulations.
The VDBC recommended the following on page 269 of their final report:
Recommendation 7-11
DoD should reassess the ratings of service members who were discharged as unfit but rated 0 to 30 percent disabled to determine if those ratings were equitable. (Note: Commission data only went back to 2000.)
Unlike the VDBC recommendation, Section 1643 is limited to those separated between 2001 and 2009. Many were victims of this same problem in the years prior.
The Navy/Marines have a policy that allows them to administratively discharge, without disability benefits, personnel who have disabilities, are found fit by PEBs but are deemed unsuitable by their commands for operational service. This practice violates DoD DES policies and such cases should be eligible for a DoD level review by 1554a boards as well.
Section 1643 does not automatically review all past cases recommended by both the IRG and the VDBC. It only reviews cases that DoD or the service member/next of kin present. At a minimum, DoD should be required to notify all eligible service members that they may apply for this board to seek relief.
Section 1643 does not mandate that the Service Secretaries follow the decisions of 1554a boards. This could be problematic.
Many have tried to seek relief from Service Board for the Correction of Military Records (10 USC 1552) with failed results due to application of service specific DES regulations by the BCMR. If a Service member has already sought relief from a BCMR, will he/she still be able to seek relief via a 1554a board?
For what did recieve the 60% VA rating? Was it all for what the Army found you unfit for or were there other issues? If there were other issues, what did the VA rate the conditions for which the Army found you unfit.
Mike
Feedback for section 1643 of 2008 NDAA:
Section 1643 only requires review of disability cases rated below 30%.
Section 1643 should have required the review of EPTS cases as well as recommended on page 32 of the final report of the Independent Review Group:
The Under Secretary of Defense (Personnel & Readiness) should conduct a quality assurance review all (Army, Navy/Marine Corps, and Air Force) Disability Evaluation System decisions of 0, 10, or 20 percent disability and Existed Prior to Service (EPTS) cases since 2001 to ensure consistency, fairness, and compliance with applicable regulations.
The VDBC recommended the following on page 269 of their final report:
Recommendation 7-11
DoD should reassess the ratings of service members who were discharged as unfit but rated 0 to 30 percent disabled to determine if those ratings were equitable. (Note: Commission data only went back to 2000.)
Unlike the VDBC recommendation, Section 1643 is limited to those separated between 2001 and 2009. Many were victims of this same problem in the years prior.
The Navy/Marines have a policy that allows them to administratively discharge, without disability benefits, personnel who have disabilities, are found fit by PEBs but are deemed unsuitable by their commands for operational service. This practice violates DoD DES policies and such cases should be eligible for a DoD level review by 1554a boards as well.
Section 1643 does not automatically review all past cases recommended by both the IRG and the VDBC. It only reviews cases that DoD or the service member/next of kin present. At a minimum, DoD should be required to notify all eligible service members that they may apply for this board to seek relief.
Section 1643 does not mandate that the Service Secretaries follow the decisions of 1554a boards. This could be problematic.
Many have tried to seek relief from Service Board for the Correction of Military Records (10 USC 1552) with failed results due to application of service specific DES regulations by the BCMR. If a Service member has already sought relief from a BCMR, will he/she still be able to seek relief via a 1554a board?
The Eight year rule applies to Active, Reserves and National Guards, correct?
Jason Perry
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No, the eight years can come in any combination of duty. They will add up days of IDT, AT, Initial Active Duty for Training, TDY, mobilizations, and any prior service.
One thing to note as regards reservists, the eight year rule, codified at 10 USC Sec. 1207a, states it applies to those who would be covered by Secs. 1201,1202,1203. In order to be covered under those sections, you must be on orders for 30 days or more. So, in many cases it is to a reservists advantage to be on active duty when referred to PDES if they have more than eight years of service.
One thing to note as regards reservists, the eight year rule, codified at 10 USC Sec. 1207a, states it applies to those who would be covered by Secs. 1201,1202,1203. In order to be covered under those sections, you must be on orders for 30 days or more. So, in many cases it is to a reservists advantage to be on active duty when referred to PDES if they have more than eight years of service.
So then a reservist/national guard would need approx 2920 points for the eight year rule.
Greyhound1
PEB Forum Regular Member
I am trying to figure this one out. Let's say you are a reservist with nine good years. While a reservist (2004) you get into a serious motorcycle accident that is not related to your service. You go through rehabilitation, etc... and fully recover. You are then recalled to active duty. During your second year on active duty, you seriously re-injure your knee. At this point, you have 11 total years.
The Informal PEB says EPTS. Does all the time as a drilling reservist count if you are short of the eight years when adding drills together and short of fifteen years? Or is there person just SOL?
The Informal PEB says EPTS. Does all the time as a drilling reservist count if you are short of the eight years when adding drills together and short of fifteen years? Or is there person just SOL?