Shocking denial of rights!

Jason Perry

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It is hard to remain calm after reading the Directive-Type Memo for the DOD/VA pilot program.

My first reaction is that it appears the pilot program denies Servicemembers the right to a full and fair hearing.

Title 10 USC, Sec. 1214 guarantees that "[n]o member of the armed forces may be retired or separated for physical disability without a full and fair hearing if he demands it." My read of the procedures for the pilot program is that they are going to deny Servicemembers this right to a full and fair hearing. Let me explain.

Read through these paragraphs from the DTM:

"6.11.1. For the purpose of the DES Pilot, the Military Departments will use their
PEB to determine a Service member’s fitness in accordance with existing policy
but will not assign disability ratings to conditions, other than adopting the DVA’s
rating(s) for unfitting conditions."

"6.12.3. Within 15 calendar days of the date of receipt from the PEB
Administration of a Service member’s written request for a one-time
reconsideration of a disability evaluation assigned by the DVA, the DVA DRO
will consider any new documentation or information from the Service member and
provide the PEB Administration updated ratings, if any. The DVA DRO will only
reconsider evaluations of ratings if new medical evidence is received, or the
member is able to provide sufficient evidence of an error to warrant the
reconsideration. The member is entitled to assistance in the preparation of this
reconsideration. This is a one-time “request for reconsideration” of the
rating(s) from the DVA Rating Board. Subsequent appeals of ratings to the
DVA must occur when the Service member has separated, attained veteran
status, and has been formally notified of the rating decision. There can be one
reconsideration for each unfitting condition. If a new condition is found to be
unfitting, reconsideration can be requested, even if other conditions have been
previously reconsidered."


Notice that there appears to be no opportunity whatsoever to personally appear with the assistance of counsel to argue rating. The only hearing is regarding fit/unfit decision. This makes the hearing a truncated procedure as the rating decision cannot even be addressed to the Formal PEB. If this is true, it appears this is a clear violation of due process and the rights guaranteed by Sec. 1214. It also appears that the first opportunity for meaningful review may not occur until an appeal to the Board for Veterans Appeals, much later than the current system provides.

I will be posting an analysis of the difference in likely time until review under the current system and the pilot program. This seems like a very disturbing development and a step backward in safeguarding the rights of Servicemembers.
 

brianwl

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PEB Forum Veteran
Jason,

I disagree with your read on this. Let me try to explain.

"6.11.1. For the purpose of the DES Pilot, the Military Departments will use their
PEB to determine a Service member’s fitness in accordance with existing policy
but will not assign disability ratings to conditions"


These "existing" policies include the FPEB.

6.12.3.

Doesn't really come into account with regard to your comments because it does allow for a formal appeal of the rating given. Remember a DRO review is a formal hearing and is attended by the Vet or in this case the Service member, assuming they request a DRO hearing when they file their DRO appeal.
 

Jason Perry

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Brian,

The point is the review does not come until well after separation. The law guarantees the right before separation. So,under current system, a Servicemember has the absolute right to demand a formal hearing at the PEB, appear and argue for a higher rating and possibly receive retirement pay. But under the Pilot program, they will be found fit or unfit by PEB only. The only time they are able to start the process of getting a personal appearance is going to come well after they are out of the military, through the original agency hearing. Remember, in most cases, the member will be moving from the military post back to their HOR and having to deal with being lowballed at the same time. Then they have to get their DRO hearing. The time for this will vary, but according to Chairman of the House Vet. Affairs Subcommittee on Disability Assistance, the time at the RO averages 177 days nationally, and in NY it is 255 days. Now, due to differences in what is already accomplished by having the rating board decision in hand, this will be less, but I think we are talking a minimum of several months before an opportunity to even raise the rating issues after leaving the service. Then if the award does come through, tack on a month or two in some cases before DFAS is notified and pays. This all assumes that they prevail, if not, then you have to tack on time at BVA and eventual appeal (although they can opt to go normal BCMR route). Regardless, to not even have an opportunity to personally appear and argue your position before separation is a huge denial of rights.
 

brianwl

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Jason,

I agree with everything you said, but I think what is needed is a further definition of following existing policy in 6.11.1. That is where the IPEB and FPEB would be handled.
 

Jason Perry

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Brian,

They basically follow same policy as now, just never address rating. They do the eligiblity determination (entitled to basic pay, not AWOL, injuries not due to misconduct or willful negligence), fit or unfit finding, and nature of injuries for administrative purposes (combat-related). That is it.

There are more details in the text of the DTM. I only excerpted the relevant portions, but there is more in the memo.

Bottom line, under this pilot program, a Servicemember has a chance to present his or her case as to fitness or unfitness, but can't argue rating (which will drive the amount of benefits). In my view, this results in them being pushed out of the military in many cases without being able to appear and argue why they deserve a higher rating. Wrong and illegal, in my view.
 

Jason Perry

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I have been giving this more thought. I think there may be a basis for challenging decisions of both those in and out of the DOD / VA Pilot program.

I will write more on this as time permits. But the basic argument is that having different administrative procceses for the same class of persons is a violation of equal protection of the law as guaranteed by the Fifth Amendment. I need to research this further (I am fairly confident that if it were State action and not Federal that this would be so under the Fourteenth Amendment. But the cases do make a distinction between 5 & 14th Amendment jurisprudence).

I put this out there so that any other advocates can think on this. Please chime in if you have any thoughts, agreements, or disagreements. Like I said, I will look into this further and post my thoughts.
 

maparker

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Jason,

I assume the issue is the fact those in the pilot will be rated per the VASRD and those outside the pilot will be rated per DoD/Service criteria. I had MOAA raise this issue with DoD in their meeting about a week ago. I felt this issue could soon be moot depending on how DOD implemented the 2008 NDAA provision requiring the use of VASRD critieria. The DoD folks seemed to be stating, once signed, they would have to follow the VASRD and that service criteria would have to go. I asked MOAA to test this out by asking if there were any areas in the VASRD criteria DOD believes would not be feasible for DoD to follow. Unfortunately, MOAA did not do this. It does seem, however, that DoD is getting the point that they have to rate per the VASRD. Time will tell if they truely change but at least they seemd to moving it that direction.

Mike
 

bowiesoldier

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PEB Forum Veteran
Mike/Jason,

Mine may be a good test case to the system. I communicated with you guys on VBN of my issues about a month or so ago. After finding out about cardiomyopathy w/hypertrophy in Dec06 I resigned my AGR tour with the Army Guard after 10 years of active service. I am an 11B3O (infantryman) and have since been rated by the VA for PTSD-50%, OSA-50% (am on Bi-Pap 14lbs/9lbs), Migraines 10%, Cardiomyopathy-30%, several other things for 10% ratings. All of this is well documented by civilian physicians and specialists as I have been on Tricare Prime Remote and did not have access to MTF. It has been so long because our brigade got molbilized for Iraq again and it has taken ALL of the state assets available to get them out the door so folks like me got pushed to the back burner, understandably.

I will go through the MMRB within the next couple of months, and if found unfit I will choose to go through PDES. I have 16 years total RC service and have been told I can choose retirement at age 60 if found unfit at the MMRB but would rather try for immediate retirement.

PTSD/OSA/Migraines all seem to be hot issues concerning dispairities between DOD and VASRD. I will keep you all informed on how this goes and will certianly have some questions to kind of keep me between the ditches as I prepare my case and the process unfolds.

Again great board. Have worked personnel issues for 10 years and never understood much about the PDES system (not that I am an expert now by any stretch of the imagination). This is typical of AGR soldiers throughout the Guard. We just aren't exposed to this very often. Most cases end at MMRB. So thank you for this venue.

Michael
 

Jason Perry

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Mike,

I think there are actually two different issues there.

The one you are talking about, the DOD and the VA using different criteria is certainly problematic. On the rating side, I think that if you look at the text of Chapter 61, and at decisions like McHenry or Hordechuck, the DOD has been wrong in deviating from the VASRD. I think it would take an appeal (or several before it was made clear) on a Sleep apnea case, for example, under current law, and this would eventually fall. The DOD would be forced to use the VASRD as used by the VA. As you know, the 2008 NDAA will likely make this crystal clear, though. But at least there is some textual support in the law for different procedures and process for Servicemembers and Veterans.

What I am really thinking is that there is no "rational basis" (the legal test for equal protection claims not based on race or gender) for treating members of the same group (Servicemembers referred to a PEB) differently by sending some through current process and others through VA process. And I can think of arguments on both sides why this is harmful (and thus actionable).

bowiesoldier,

Your case certainly has a lot of issues that would be interesting to see how it would be treated by either the DOD / VA pilot program, or under the new system (post 2008- NDAA).

One thing I wanted to make sure you know is that MMRB can't find you unfit. They can only recommend to the MMRB Convening Authority the following:
":a. Retain in current PMOS/specialty code
b. Reclassification or change in specialty (reclassification authority has final approval.)
c. Place in probationary status
d. Refer into the PDES or the RC medical disqualification process"
You may have already known that, but I wanted to make it clear also for those who are reading this thread. (Here is a MMRB Brief from Army G1, if anyone is interested.) But I get your point, you will go for referral into the PDES.

Don't feel bad about not knowing much about this system, it certainly is not only an AGR problem. When I was in the Guard, I never heard of it. When I took the Pre-Command Course at Ft. Bragg, they mentioned it, but basically said, "if you have questions, ask your JAG." Which in hindsight is laughable, because they did not cover it at the JAG Officer Basic Course. In fact the only formal training Army wide is the Senior Adjudicators course, the 5 days course for PEB Board Members! Everything else is OJT, so it is not surprising that there is a lack of knowledge on this subject. Your input will be valuable, now more than ever, to helping others understand any "new wrinkles" to the system. Please keep us updated!

 

bowiesoldier

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PEB Forum Veteran
Jason,

Thanks for clearing up the MMRB info. I got so wrapped up in the my last post I forgot to ask the intended question. Say for example in a hypothetical situation with the issues I described earlier that I was referred to PDES and the MEB found all of the conditions unfitting except one, say the sleep apnea. At what point are you able to address this in the different systems? Letter to IPEB? Referral to FPEB? Or do you just wait it out and try to get it through ABCMR? Or are you SOL? Still confused a little on this one.

Michael
 

Jason Perry

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Remember, the MEB only states if you have conditions that are "disqualifying" for retention purposes. It is a bit of a misnomer, because that does not have any relationship at all to "unfitness," which can only be found by the PEB (as a recommendation) and approved by the Service Secretary designee.

So, what you want in a case where you think you are unfit (and do not want to try to argue for a fit finding), is for the MEB to list in the Narrative Summary ALL conditions you have that are disqualifying, their history, treatment, and prognosis. They will also state how the conditions impact duty performance, but in my experience this is given little weight if there is contradicting evidence (mainly because this is really the provence of the PEB, not the MEB and the PEB sees statements that are all over the map on this one...same actually with many EPTS statements).

The place to deal with anything that is missing or erroneous in the NARSUM or MEB is by submitting a statement of disagreement to the MEB.

In cases that turn on the medical evidence as dispositive for rating, I often times will submit a "Request for Reconsideration" to the Informal PEBs findings. This usually happens because I oftentimes get involved with cases after the IPEB has lowballed a Servicemember, however had I been able to look at the case, I would have been able to ensure this info was already in the case file before the IPEB. In these types of cases, submitting this request along with clear evidence that a higher criteria rating is met will result in issuance of revised findings. Not all cases are of this type, for example, mental disorder cases will rarely result in a change before the FPEB because, in my experience, the FPEB likes to questions the Servicemember directly.

I do not advise to ever "wait it out." The best result will come with having as much good evidence as you can, as early as you can, and taking a consistent position. I also think it is better to do this early, because if you have a good amount of evidence prior to IPEB, then that board is like a free shot at getting a good rating. After that, you can adress any concerns the IPEB has stated. But if you just wait to see what they say, you are giving up that free shot, and the FPEB is all you have left at the PDES level. It I very important in my view to raise legal issues NO LATER than the appeal to the Formal PEB's finding (or Petition For Review in Naval parlance). This is because the Services can claim at the BCMR that you did not raise any issue below and therefore there is no "error or injustice." It only gets worse down the line, because not raising the issue at the BCMR will also result in a "waiver" argument barring your claim in Federal court.

A lot of information, I know. If anything is unclear, don't feel shy about asking again. It takes a lot of experience to really get some of this stuff.
 

bowiesoldier

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PEB Forum Veteran
All,

Just an update to the case. I stood the MMRB today and was referred to the PDES. Declared unfit for retention for PTSD and Cardiomyopathy. OSA and Migraine didn't make the cut. It's a good starting point. Ready to move forward.

Bowiesoldier
 

sfxer02

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Hey bowiesoldier,

Do you happen to know why your migraines were not considered unfitting?

I am getting ready to be boarded for classic migraine w/aura, was diagnosed with cluster headaches as well, and neurocardiogenic syncope, but going through Navy MEB/PEB.
Just was wondering to see if I need to do anything different to make sure it goes smoothly...(yeah right, nothin goes smooth in the service..:eek:)

Thanks my friend...
 

builtgypsy

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Bowiesoldier, as long as this whole process takes, I can just imagine what it feels like to finally be that much closer to the end of it. I still feel like I've just started, and I've been going at this for 20 months already!

Congratulations, and I hope you have smooth success.

-Guy
 

bowiesoldier

PEB Forum Regular Member
PEB Forum Veteran
Tony,

Remember this was only a MMRB for the RC so it is really not all inclusive nor binding but I only average one prostrating attack per month which they said can be worked around even though my MOS is 11B (infantryman).

Guy

Yes it feels better to finally have the process STARTED. I have been waiting for approximately 12 months, and still have a ways to go but at least things ar moving in a positive direction.

Thanks for the words of support and hope all is going well with the cases for both of you guys.

Michael
 
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