GAO Report: Improvements to DES Can Be Made

[Jason]

The GAO published the attached report in September 2008.

This is from the preface to the report: "GAO was asked to examine (1) recent actions by the Army to help servicemembers navigate its disability evaluation process and (2) the status, plans, and challenges of DOD and VA’s efforts to pilot and implement a joint disability evaluation system."

I will comment as time permits.

[Jason]

This is the first thing that caught my eye:

"In addition to gaps in board liaisons and board physicians, staffing of legal
personnel who provide counsel to injured and ill servicemembers
throughout the disability evaluation process is currently insufficient.
According to the Army, servicemembers should receive legal assistance
upon request during both the MEB and PEB processes. While
servicemembers may seek legal assistance at any time, the Army’s policy is
to assign legal staff to servicemembers when their case goes before a
formal PEB. As of June 2008, there were 28 total staff—20 attorneys and
8 paralegals, located at 5 of 35 Army treatment facilities—dedicated to
providing assistance to servicemembers undergoing disability evaluation18
(see fig. 3). In April 2008, the Army recognized that the current staffing
was insufficient and approved the hiring of 36 permanent legal
personnel—1 attorney and 1 paralegal at each of 18 locations. Although
these additional staff—which the Army is in the process of hiring—will
help, their number falls short of the originally proposed 57 staff. According
to an Army official involved in legal staffing, the 36 additional staff will still
be insufficient to achieve the Army’s goal of providing comprehensive
legal support early in the evaluation process. Moreover, some of the legal
personnel already in place serve on a temporary basis. Therefore, their
replacements will need to learn about military disability evaluation
regulations and processes, which involves a substantial learning curve and
could pose a challenge to service delivery and quality of legal counsel.19

18These staff are located at the 3 facilities with Army PEBs as well as Tripler, Hawaii, and Fort Carson, Colorado. According to Army officials, there are approximately 350 other attorneys assigned to provide various forms of legal assistance to servicemembers. However, these attorneys are not dedicated exclusively to the disability evaluation process, and, according to Army officials, many of these attorneys do not have experience with the
process, which limits their ability to counsel servicemembers.

19In June 2008, the Army replaced 18 reservist legal personnel who were staffed a year prior—to help meet increasing demand for legal support during the disability evaluation process—with 18 new reservists. According to Army officials and a Disabled American Veterans representative with extensive experience in counseling servicemembers during the evaluation process, frequent rotations and turnover of Army attorneys working on disability cases limit their initial effectiveness in representing servicemembers, due to the
complexity of disability evaluation regulations."

I can tell you that the training and experience level of the attorneys are a huge issue. In my opinion, the main culprit is that fact that there is no military career path for Soldiers' counsel (this is true of all services, actually). That is, after doing a tour at the PEB, there is no further positions of increased responsibility. The result is that there is little institutional knowledge on PEB law and the issues.

Another issue is that the 18 attorneys referred to in footnote 19, are actually too many. I have a close friend whom I worked with in the JAG Corps, who is currently assigned to one of these slots. She tells me she is averaging about one case a week, and some weeks none. This means that in a year long reserve tour, an attorney may not represent that many members, and will not gain the experience necessary to offer effective representation. It also increases the length of time until they achieve a level of competence.

[Jason]

This also is noteworthy:

"In 2007, about 30 percent of reservist cases were returned
because of incomplete information compared with about 15 percent for
active-duty servicemember cases. As of June 2008, the Army had not taken
steps to identify potential actions that might mitigate this disparity."

The answer is to provide qualified legal counsel that will review the case file with the Soldier at the MEB level. This, in combination with the Independent Medical Advisor, will greatly reduce the return rate. The vast majority of cases I handle (probably 70-80%) have glaring errors in the MEB report. The numbers in the first paragraph, above, represent only those cases that the PEB finds to be deficient. The actual number that should be sent back is much higher. The actual scope of the problem aside, the solution I suggested would greatly reduce this problem. It would also save money because there would be less appeals if the MEB were done correctly.