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MEB/PEB Rebuttal and Appeal Provisions dated 12/08/08

cvma544

PEB Forum Regular Member
PEB Forum Veteran
Registered Member
Don't know if this has been posted yet or not, if it is a duplicate I am sorry.

Stu

MCJA 8 December 2008

MEMORANDUM for COL Samuel Smith, MEDCOM SJA, 2050 Worth Road, Fort Sam Houston, Texas 78234

SUBJ: MEB/PEB Rebuttal and Appeal Provisions Contained in the 14 October 08 Revised and New Policies to Implement the National Defense Authorization Act for Fiscal Year 2008.

1. Purpose. To advise that the revisions and additions concerning rebuttal and appeal contained in the Revised and New Policies to Implement the National Defense Authorization Act (NDAA) for Fiscal Year 2008 are required to be implemented immediately. Therefore, to the extent any new or revised provision is contrary to existing Army Policy or Regulation, the new or revised provision controls.

2. Background. The Physical Disability Evaluation provisions of DoDI 1332.38 (Nov. 14, 1996) were revised and new provisions were added by the Under Secretary of Defense Policy Memorandum on Implementing Disability Related Provisions of the National Defense Authorization Act of 2008, dated 14 October 2008 (Policy Memorandum). By its express provisions, the Policy Memorandum must be immediately implemented by the Military Departments.

3. Discussion. (a) MEB-related sections: These sections are preceded by the following statement: “The Military Departments shall publish policies that ensure” and conclude with, “Medical evaluation participants shall be trained in accordance with this issuance and existing policy.” The Policy Memorandum contains a new provision E3.P1.2.6.1.2, which provides the Service member who has been referred into the DES with the option of requesting review of the MEB NARSUM by an impartial health professional, not involved in the Service member’s MEB process. If requested, the health professional has up to 5 calendar days to advise the Service member whether the MEB findings adequately reflect the complete spectrum of the Service member’s illnesses/ injuries. A new E3.P1.2.6.1.3 provides that, after review with the assigned impartial health care professional, the Service member shall be afforded the opportunity to request rebuttal of the MEB results. If requested, the Service member is afforded 7 calendar days to prepare a rebuttal to the convening medical authority. The convening medical board authority is then allowed 7 calendar days to consider the rebuttal and return the fully documented decision to the Service member. If rebuttal was requested, the MEB shall not be forwarded to the PEB until the rebuttal is finalized and results indicate the Service member may be unfit for duty. The implication is that if the Service member does not want impartial provider review, the Service member can still request rebuttal, and be allowed 7 days in which to prepare the rebuttal. The section requires that the fully documented rebuttal be included with the MEB information sent to the PEB, and a new E3.P1.6.4 provides that the rebuttal time is excluded in calculating the processing time for MEB (E3.P1.6.4).

(b) PEB-related section: E3.P1.3.3 added the following new requirement under the Informal PEB section: The Service member will be provided a minimum of 10 calendar days from receipt of the informal findings to rebut the findings of the Informal PEB and request a Formal PEB. That section also requires, that in addition to this timeline, Military Departments shall publish time lines for presentation and consideration of cases. Further, a new E3.P1.6.5 states that processing time for Duty-related PEB cases should not exceed 30 calendar days from the date the clinical summary is dictated to the date the complete case file is received by the PEB, excluding rebuttal time.

4. Conclusions. The new provisions for appeals in the Policy Memorandum establish mandatory minimum time limits. The fact that the proponent established that time devoted to rebuttals and appeals do not count in the calculation of total time for processing a case, along with express language in the Policy Memorandum clarify that the intent was to provide greater minimum times for Soldiers to rebut and/or appeal MEB and/or PEB findings. In my opinion, the express language of the Policy Memorandum indicates it supercedes all existing Policy to the contrary or that is more restrictive, including the shorter time period for appeals and rebuttals in AR 40-400 ( February 2008).

5. Recommendations. Immediate compliance with the expanded minimum rebuttal and appeals time frames, and immediate implementation of offering optional review by an impartial healthcare provider (Service member’s Primary Care Manager).
 

fdmckeever

Moderator
PEB Forum Veteran
Very informative. Hopefully other installations will be as proactive in implementing provisions. Again, more vital information for the service member's kit bag. Thanks.
 

robs42

Well-Known Member
PEB Forum Veteran
Stu,

GREAT find!

my MEB was submitted. don't know when, because they didn't tell me :mad:. i'm crazy right now! i wasn't even given an oppertunity to review, sign and rebut it. all my med. clerk told me was the name of my PEBLO and that it was submitted. i left a message w/the med. CC, but he hasn't returned my call. i sent an e-mail to my supervisor (one of my best friends), chief, PEBLO and med. section.

my supervisor was crazy about what they are doing to me, so he's going to talk to my chief, to stirr some s#!t up. we'll see what happens.

thanks again!!!
 

AFPEBLO

PEB Forum Regular Member
PEB Forum Veteran
Registered Member
Rob

my MEB was submitted. don't know when, because they didn't tell me :mad:. ....... i wasn't even given an oppertunity to review, sign and rebut it. all my med. clerk told me was the name of my PEBLO and that it was submitted. i left a message w/the med. CC, but he hasn't returned my call.

Can you clarify a few things for me.
1. Who sent the MEB (your ANG medical unit or an ADAF Medical Group)?
2. Where did they send it? (Guard Bureau in DC, AFPC, an ADAF Med Group)?
3. Where is the Medical commander you are calling?
 

cvma544

PEB Forum Regular Member
PEB Forum Veteran
Registered Member
Stu,

GREAT find!

my MEB was submitted. don't know when, because they didn't tell me :mad:. i'm crazy right now! i wasn't even given an oppertunity to review, sign and rebut it. all my med. clerk told me was the name of my PEBLO and that it was submitted. i left a message w/the med. CC, but he hasn't returned my call. i sent an e-mail to my supervisor (one of my best friends), chief, PEBLO and med. section.

my supervisor was crazy about what they are doing to me, so he's going to talk to my chief, to stirr some s#!t up. we'll see what happens.

thanks again!!!

Rob,

You need to call me man, before it is too late, I MAY be able to hook you up.

Stu
 

cvma544

PEB Forum Regular Member
PEB Forum Veteran
Registered Member
This info came from USAPDA. The COL I have contact with there is the Reserve Component Advisor and is not shy about fixing things that come her way, I just by luck ended up with her on the phone back in April and with one phone call she had my admin discharge stopped and a MEB/PEB started.

I have kept her up to speed on my case as it has progressed.

She is one of the good ones in the system, she gives a sh!t about soldiers.

Stu
 

1 medical soldier

Member
Registered Member
This is how the formal process works in the Army:

Adjudication Process

Board composition

Adjudication is normally by a three-member board composed of a mixture of military and civilian personnel. The President is normally a colonel, but may be a GS-13 Civilian Adjudication Officer. The Personnel Management Officer (PMO) may be a field grade officer or a GS-13 Civilian Adjudication Officer. The physician may be civilian or military. When military members are used as the President or PMO, they may be of any branch except the Special Branches. When an RC appears before the board, one member must be of the Reserve Components.
Informal

The initial findings and recommendations are based on a records review without the soldier's presence.
Formal

Soldiers who disagree with the informal findings and who are found unfit are entitled by law to a formal hearing. Soldiers who are determined fit may request the PEB President to grant them a formal hearing. Soldiers may elect to appear or not appear and to be represented by appointed counsel or by counsel of choice at no expense to the government. Soldiers may request essential witnesses to testify on their behalf. The PEB President determines whether witnesses are essential.
Appellate and Quality Review

USAPDA reviews those cases in which the soldier disagrees with the findings of the PEB and submits a rebuttal. Additionally, USAPDA designates certain cases for mandatory review and conducts a sample review of others. If USAPDA changes the findings of the PEB and the soldier nonconcurs and submits a rebuttal, the case is forwarded to the Army Physical Disability Appeal Board (APDAB) for final decision.
 
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