Disposition of PDBR cases?

[probonolaw]

Hi Jason,

As part of a pro bono research project, I am curious as to whether anyone has requested PDBR review, and if so, the disposition? I would also appreciate hearing any pros/cons for PDBR review. Many thanks for any information you can provide or direct me towards.

Best regards,
New pro bono attorney

[Jason]

probonolaw,

The AF has not yet published the regulations necessary to stand up the board, so there have not been any cases processed yet. As soon as there are any developments, I will post them here.

As far as pros and cons, I suspect that the PDBR will be faster than the Boards for Correction of Military Records, it may have better results because of expertise (the board will only handle disability cases) developed by board members, and it is a final decision for administrative purposes (so there is no issue with exhaustion of administrative remedies before going to court).

The cons are that it won't review fitness findings, cases adjudicated before 9/11/01, or EPTS or non-service aggravated cases. These are just what come to mind, there may be more issues when they publish the regulations.

[probonolaw]

Jason,

Many thanks for your comments and information. Your forums have provided me a wealth of information, and it is much appreciated.

Best regards,
probonolaw

[probonolaw]

Hi Jason,

Thanks for your help. As a couple of follow-up questions, could you comment on the "non-appealable" aspect? That is, I understand that a Service Member waives his right to administrative review following acceptance of the PDBR's recommendation, but what possible avenues exist for judicial review? Additionally, should the Secretary not accept the PDBR's recommendation, since it seems the Secretary has the discretion to do so, does the Service Member have any administrative recourse? Finally, do you think that two independent determinations (PEB, followed by PDBR) of one's disability rating could hurt/bias one before a court? Thanks for any clarification and insight you can provide.

Best regards,
probonolaw

[Jason]

Originally Posted by probonolaw

[size=2][color=#0000ff]Hi Jason,
Thanks for your help. As a couple of follow-up questions, could you comment on the "non-appealable" aspect? That is, I understand that a Service Member waives his right to administrative review following acceptance of the PDBR's recommendation, but what possible avenues exist for judicial review?

This is a very simple analysis but cases based on financial injury should go to US Court of Federal Claims. For "wrongful discharge" cases, US District Court is an option. There are several cases posted in the Library link, look over those for the jurisdictional requirements.

Additionally, should the Secretary not accept the PDBR's recommendation, since it seems the Secretary has the discretion to do so, does the Service Member have any administrative recourse?

As far as "administrative review," no. The Secretary is the highest agency official and the DoD has no other superior mechanism. However, there are some good cases out there on when the Service Secretaries have to follow the recommendation of BCMRs and when it is arbitrary and capricious to not to.

Finally, do you think that two independent determinations (PEB, followed by PDBR) of one's disability rating could hurt/bias one before a court?

No, not with how the opinions are drafted. Remember, the PEB has no legally trained voting members, and they write their own opinions. The result is that the rationales are not as detailed as they should be and very rarely provide the a reviewing court with a basis for reviewing their decision. So, getting a remand in most cases is not a stretch.

In some cases, it may make sense to sue without going admin route, but I tend to think the more they (PEB/PDBR) write, the more basis for appealable error.

Hope this was helpful. Feel free to follow up with any questions.

[probonolaw]

Many thanks, Jason, for helping me make sense of these rules. You are extremely generous with both time and knowledge, and I really appreciate your efforts. Continued good wishes to you and all seeking a square deal!

best regards,
probonolaw

[Jason]

probonolaw,

Thanks for the well wishes, I am always glad to help...Servicemembers and Vets foremost, but helping other pro bono attorneys is especially important as it is a "force multiplier." The more folks we have in the fight, the better.

Besides, for whatever reason, this stuff fascinates me!