Formal Board Appeal

M

mebwarrior70

PEB Forum Regular Member
Registered Member
Good Afternoon!

I appealed my case and have a formal board set for June of 2024 to add an unfitting condition - migraines. However, my lawyer submitted a written appeal 5 weeks ago to see if we could raise my DOD rating before the actual board takes place. My lawyer told me that I have a strong case and I'm wondering if anyone else went through this/would be willing to share their timeline.

Thank you!
 
jamieb said:
Good Afternoon!

I appealed my case and have a formal board set for June of 2024 to add an unfitting condition - migraines. However, my lawyer submitted a written appeal 5 weeks ago to see if we could raise my DOD rating before the actual board takes place. My lawyer told me that I have a strong case and I'm wondering if anyone else went through this/would be willing to share their timeline.

Thank you!
Click to expand...
Its very common especially for the Army to review the written appeal and if they agree with it they will add it to your DA 199 and cancel the FPEB. Hoping that is the case for you!
 
mebwarrior70 said:
I appealed my case and have a formal board set for June of 2024 to add an unfitting condition - migraines.
Click to expand...

mebwarrior70 said:
However, my lawyer submitted a written appeal 5 weeks ago to see if we could raise my DOD rating before the actual board takes place.
Click to expand...
It is unclear what is going on with your case. The FPEB will only decide if you have unfitting conditions. That means that the FPEB is the proper place/process to argue for an additional unfitting condition, in your case, migraines.

But, the "written appeal" you mentioned to increase your ratings would almost certainly be a VA Rating Reconsideration (VAERR) request. Almost always, I advise folks to submit a VARR after the FPEB. But, I don't know enough about your case to offer more.

I hope you get a great outcome with your case.
 
Jason Perry said:
It is unclear what is going on with your case. The FPEB will only decide if you have unfitting conditions. That means that the FPEB is the proper place/process to argue for an additional unfitting condition, in your case, migraines.

But, the "written appeal" you mentioned to increase your ratings would almost certainly be a VA Rating Reconsideration (VAERR) request. Almost always, I advise folks to submit a VARR after the FPEB. But, I don't know enough about your case to offer more.

I hope you get a great outcome with your case.
Click to expand...
You can request in writing for your FPEB case in advance and the PEB can respond to it before the FPEB. Though it could be a VARR request. Depends on what their attorney was trying to do. Not sure if that is a trick up the sleeve that only private attorneys do since they can devote more time to a Soldiers case or if assigned legal from the Soldier's branch knows about this too.
 
Typically, I submit an IPEB Reconsideration Request on behalf of my clients - a written brief with supporting evidence seeking an on-the-record record in Army cases ahead of the FPEB. This is because the Triage team at the IPEB level for the Army- known as the Echo Team- is very good at reviewing these requests and frequently grants the relief requested without a hearing. In Air Force cases, this is called a request for a summary decision, but they are rarely granted nowadays. While the Navy discontinued this process years ago, they are trying to reinstitute it as a common practice, but I do not see it as being viable anytime soon. On the other hand, Navy boards will often grant a stipulated decision granting some or all of your requests the day before the formal hearing or on the day of the hearing. The Coast Guard system allows for multiple IPEB recon requests before a formal hearing, and a skilled attorney- civilian or military counsel- will use this technique for the benefit of their client.

Tactically, there are times when I request a formal hearing to buy additional time to add necessary additional evidence to a VARR and then withdraw the formal hearing request and submit the VARR just before the hearing. This is done in scenarios where the service correctly determines your unfitting conditions, but the VA rating is too low. In reply to Provis' question, military legal counsel will also use this technique, but it is typically the assigned counsel on the FPEB level who will use it, and the time frame with which they have to work with you becomes much more limited as they are typically detailed two weeks or less before the formal hearing. Some MEB-level counsel will do so, but for the most part, they assume a hands-off role when you request a formal hearing as they have a bifurcated chain of responsibilities- with the MEB counsel handling the pre-FPEB matters and the FPEB counsel handling the hearing and post-hearing appeals.
 
Provis said:
You can request in writing for your FPEB case in advance and the PEB can respond to it before the FPEB. Though it could be a VARR request. Depends on what their attorney was trying to do. Not sure if that is a trick up the sleeve that only private attorneys do since they can devote more time to a Soldiers case or if assigned legal from the Soldier's branch knows about this too.
Click to expand...
About requesting an "IPEB reconsideration" or "summary adjudication" or submitting something before the FPEB, I think there are several things to consider. First, some of these procedural things are not found in the regulations at all and its somewhat (or in some cases) kinda like coloring outside of the lines. I started submitting items in advance of some formal hearings about 15 years ago with the idea that 1) there's nothing in the regulations that says I can't do it, and 2) if there is a strong basis to get the case decided beforehand, well, it's a "win-win," the client gets a good outcome (or at least another "bite at the apple,") and the board's members don't want to spend time in a hearing if they can resolve the case beforehand. But, I also weigh this factor....I don't want to "swing and miss" in a case where I think it could plausibly go either way. That is, I believe in taking your best shot at the right place, and I don't want to have a Formal Board look at a case where I have already argued something in a pre-FPEB writing/appeal and see that someone else has already denied something after the IPEB has also found against my client's desired outcome....my view is that it makes sense to do pre-formal submissions when you are confident that the evidence will convince the PEB to change the result. Otherwise, I prefer to take the best shot at the FPEB, where the board members can raise issues or ask questions that may convince them that they should give us what we are asking for. I don't want the FPEB board members to see several denials of the same argument based on the same evidence before I can persuade them' my concern is that they start with a "no, I am not going to grant or vote for something that has been twice denied before" mindset. I think this is a factor to consider in deciding whether to take your shot before the FPEB hearing happens or whether the best place is at the formal hearing.

This is not an issue where there's a "best way" or preferred method in every case. The facts and experience matter in deciding what approach to take.

As far as the assigned counsel not knowing or doing these types of things, I think the big factor is their huge caseload, their limited time to consider the issues or to help gather the evidence before they are assigned, and their weighting the impact on the numerous other cases that they have.
 
johnbgately said:
In reply to Provis' question, military legal counsel will also use this technique, but it is typically the assigned counsel on the FPEB level who will use it, and the time frame with which they have to work with you becomes much more limited as they are typically detailed two weeks or less before the formal hearing
Click to expand...
Two weeks prep time hardly constitutes legal representation. Many of the questions on this website, other than timeline questions, ought to be answered by competent military legal counsel.
 
While Jason and I have different approaches to our caseloads, we both agree that each case is unique and there is no one-size-fits-all solution that will fit every case. And, quite honestly, when I am unable to take on a PEB case due to a scheduling conflict, there are only two other attorneys to whom I would refer prospective clients- Jason Perry and Joel Pettit. While we may be competitors, we are also friends and regularly exchange ideas, tactics, and case strategies that may best help our clients and the members of this forum.
 
johnbgately said:
While Jason and I have different approaches to our caseloads, we both agree that each case is unique and there is no one-size-fits-all solution that will fit every case. And, quite honestly, when I am unable to take on a PEB case due to a scheduling conflict, there are only two other attorneys to whom I would refer prospective clients- Jason Perry and Joel Pettit. While we may be competitors, we are also friends and regularly exchange ideas, tactics, and case strategies that may best help our clients and the members of this forum.
Click to expand...
This is a testament to all three of you putting your client's interest first. I don't know a profession that doesn't include different approaches. There are over 200 theoretical orientations among psychotherapist and that doesn't include those that blend 2 or more together.
 
You must log in or register to reply here.
Top