Disability and Service Separation
Chucala, Steven, Soldiers Magazine
Disability and Service Separation
"DISABILITY" is a word that is foreign to our physically fit soldier lifestyle. It's often misunderstood due to incorrect advice or opinions from leaders or peers, advice that is often given at a time when a soldier's career is threatened and correct information is vital.
Disability and separation issues affect the soldier when an injury or medical condition is permanent and severe enough to limit job performance or deployability, raising the issue of fitness for duty. "Physical disability" includes both mental illnesses and physical conditions.
When reasonable medical care has been exhausted and the soldier's ability to serve according to Army standards is in doubt, the treating physician, a commander or an MOS Medical Retention Board may refer the individual for a Medical Evaluation Board. The MEB is a clinical history of the patient's care and resulting condition, prepared by the treating physician using the standards in Army Regulation 40-501.
Medical Evaluation Board Process
The MEB does not require a hearing. Instead, the soldier is given a copy of the MEB findings for review, and the soldier has the right of rebuttal. Legal-assistance attorneys can help soldiers review medical board findings.
The Army's disability program is based on federal law (Chapter 61, Title 10 of the U.S. Code) as implemented by Department of Defense Directive 1332.38, DOD Instruction 1332.18 and AR 635-40. The U.S. Army Physical Disability Agency, which has geographic regional branches known as Physical Evaluation Boards, ensures independent, impartial determinations that are free from command influence.
Army medical-treatment facilities employ Physical Evaluation Board Liaison Officers, who are usually civilian employees who provide information to soldiers and are a conduit between the MTF and the Physical Evaluation Boards. These liaison officers are not lawyers, nor are they the soldier's advocate or covered by attorney-client confidentiality rules.
The Physical Evaluation Board, or PEB--which includes a line officer, a personnel officer and a medical officer--performs the initial evaluation or "informal board" of the MEB report. Each PEB member individually evaluates the file and makes findings as to the soldier's fitness or unfitness with particular medical conditions and ratings for each based on the Department of Veterans Affairs' "Schedule for Rating Disabilities." A composite finding and recommendation is forwarded to the soldier for review and reply.
Soldiers can respond in several ways, ranging from concurring to nonconcurring with the PEB findings. They may submit additional information, escalating up to a request for a formal hearing with appointed free legal counsel and the right to present expert testimony and documentation, and the right to testify before the board. Often a soldier may disagree with a finding of "unfit" and will attempt to show that the medical condition does not preclude performance of MOS duties. Some seek to prove they are unfit or deserve higher disability ratings.
The Formal PEB is composed of at least three members, as well as a recorder who introduces the case but does not engage in any questioning. Whether it is an informal or formal PEB, it is not an adversary proceeding, but rather a fact-finding effort to enable the board to reach a fair conclusion. …