Other Administrative appeals

Jason Perry

Jason Perry

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This morning I spoke with one of the attorneys at the Army Review Boards Agency (ARBA). He provided me with some interesting information about some of the other boards available to Soldiers after the APDA has acted on a case.

In Fiscal Year (FY) 2006, the Army Physical Disability Appeal Board (APDAB) only reviewed one case. For FY 2003-2005 the APDAB and the Army Disability Rating Review Board combined only reviewed 10 cases total. ARBA's unofficial position is that the Army could technically require Soldiers to appeal to these Boards before going to the ABCMR, however, they do not enforce that requirement. I suspect that this may be in part because it is easier and costs less (in administrative costs and manpower) for the Army to process cases at the ABCMR than by requiring another Board to go through another layer of review before ending up at the ABCMR anyways. In any event, this low number of cases before these boards make it impossible to draw meaning from the outcomes. In my opinion, it is probably a waste to appear before these two boards because if you lose it will then take a later ABCMR appeal before you can file suit in Federal Court.

About the ABCMR statistics. In FY 2006, the ABCMR processed 14,583 cases. In 46% of these cases, ARBA reports that there was an upgrade or correction to the Soldiers record (remember, though, that physical disability cases are a small minority of the ABCMR 's case load- there are wrongful discharge cases, promotion cases, military award cases, and characterization of discharge cases among others). The majority of petitions were filed without the assistance of an attorney. I think this is great because it shows that Soldiers can get relief without the assistance of an attorney. I also wonder if the other cases would have been successful if there was an attorney involved. An attorney may be much more important if the case is going to ultimately end up in a Federal Court because before you can sue on an issue, you generally need to raise it first with ABCMR. As far as processing times, the ABCMR was able to process 96% of their cases in FY 2006 within 10 months.

Though the Army Discharge Review Board (ADRB) is not directly concerned with disability cases, the statistics from that board can provide some insight. In FY 2006, the ADRB processed 1359 cases with a success rate (defined as some correction or upgrade) for Soldiers of roughly 50%. Again, the majority of these cases were without attorney representation.

So, what conclusions to draw from all of this? Since the ABCMR is the gateway to the Federal Courts (except for wrongful discharge cases), I think it makes sense to appeal there directly. Since the object there is to win and barring that to set the stage for an appeal in Federal Court it is important that you identify the correct issues at the ABCMR that you can later raise in court. An attorney or VSO may be helpful to doing this but you may be successful on your own.
 
Jason,


The disability review board (10 USC 1554) and the discharge review board (10 USC 1553) are options as well. I represented an officer at the first Disability Reveiw BARBA had done in over eight years. Why so few? The Army does not mention this option in AR 635-40 or anywhere else. ARBA staff did not even know what it was but looked it up and granted a board.

ARBA has agreed that medical separtion cases can be heard by the discharge review board. We are scheduled to take our first medical Separation Discharge Review case (1553) to ARBA in early September. More are in the pipeline.

Both of these boards are composed of active duty officers vice civilians as is the case with the ABCMR. In additon, regs require the board to answer the specific issues raised in the appeal in their decision. This is helpful in getting the Army to show its cards that can be used in further boards or court actions.

In addition, the Senate has bassed a bill creating the 1554a board. It will be at the DoD level and will review medical separation decisions from 9-11 utill the end of 2009. They may admend this provision to include EPTS and/or fit but unsuitable cases as well.

Mike
 
Please keep us posted

Mike,

I am very glad you joined here. Your input and expertise will be a great help.

Please keep us posted on how things go at these boards. I am very interested in how Soldiers fare at them, especially if there are a substantial number. The low number of cases at the other boards makes me wary of them because it is hard to predict what will happen there. Do you know if this is going to be a sitting board or will they convene as needed with new members? Do you have any memos or implementing directions for these boards?

One issue with the boards to be aware of is the Court of Federal Claims has a six year statute of limitations (there are exceptions) on filing suit from date of discharge. So, if the Soldier is well under the six years, going to numerous boards may be a viable option. (If it is close to six years, another option is to file suit in Federal Court of Claims and request stay while pursuing administrative remedies at these boards; this preserves the suit and gives the Soldier a reviewable administrative decision in Court). If the Soldier is over six years, the boards may be the only place to ask for redress. In that case, the more boards the better.

Given the percentage of cases at ABCMR where relief was granted, I feel that going there is worthwhile. It is likely to be quicker and cheaper than filing at Federal Court of Claims and besides it is a necessary step before filing suit anyways. However, if I had to choose between another level of administrative review (than ABCMR) and getting the case reviewed by the Court of Claims, I would choose the Court. Not that the courts are perfect, but at least there you have a body of law to rely on (the boards don't issue precedential decisions) and you still have the Court of Appeals for the Federal Circuit to appeal to afterwards.
 
maparker said:
In addition, the Senate has bassed a bill creating the 1554a board. It will be at the DoD level and will review medical separation decisions from 9-11 utill the end of 2009. They may admend this provision to include EPTS and/or fit but unsuitable cases as well.
Click to expand...

Mike,

Do you have access or input to any of the committee members or staffers on this bill? I was wondering if they have thought about addressing the statute of limitations issues? They could put in language starting the clock over for statute of limitations purposes for this class of cases.
 
Jason,

You best bet would be to see if any of your Senators or Representatives are members of the SASC or HASC. If not, you could try going to the HASC or SACH directly. Their numbers can be found online.

Mike
 
Appeal to be Reinstated

Sirs, In reading all this information, I seem to have found the area I wanted to be in. I am trying to figure out how to appeal my medical discharge. I was separarted with a 0% rating for a grade 1 spondylethesis that was corrected with a L4-L5 fusion. I recovered fine and I had hoped to continue my service, but I followed, what I now know as bad advise ,from my PEBLO and accepted the results of my informal PEB. My doctor basically said that I was good to go, but because I am 42 y/o, he thought I should "save my back " for my "older" years. He told me that if I was 35 or 36, he wouldn't even have recommended a medical board. I kinda think that I was picked on because of my age. I had no previous history of back problems, and I have been an 11B my whole career. I have met with a VSO and he strongly agrees that I should fight this and get reinstated back on active duty. I have seen a civilian orthopedist and a physical therapist and both tell me that I am fully capable to handle the rigors of military life, even at my age and the likely hood of reinjuring the fusion is no greater than some 20-25 y/o throwing out there back playing sports. How would I approach this and to whom would I need to write too?? Any suggestions would be appreiciated.
 
ABCMR appeal

Rangerchuck,

Welcome to PEB Forum. Let's see if we can't give you some info to help you appeal.

I think your route for appeal is to the Army Board for the Correction of Military Records (ABCMR). Here is a link to the Army Review Boards Agency website. There you will find links to information and an online application. They are supposed to rule on your case in 10 months or less after you file.

I initially considered an Army Discharge Review Board. However, if you look at their webpage (also found at the above link) you can see that they have no authority to revoke discharges. That brings me to the next issue I think you need to address: What exactly do you want them to do?

This question really gets to the heart of the matter. Are you going to ask them to re-instate you? If so, I think what you ask them for is to correct your records to show that you were never discharged. However, I think this is an uphill battle. My gut instinct says that this will be difficult to get to. You could ask for them to change your RE code on your DD 214 to reflect eligibility to re-enlist. Is that what you want to ask for? Have you looked into re-enlisting?

The next question I think you need to address is what is the error or injustice you want to have them address. A problem is that you chose to accept the findings. However, I think you have a valid issue if the PEBLO gave you bad advice. AR 635-40 has a number of requirements for counseling in Appendix C. If the PEBLO gave you faulty counseling that did not meet the requirements of the regulation, you could make that the basis for the error or injustice. Now that I think of it, perhaps you could ask them to find that you did not concur with the findings and demanded a formal hearing (I still think you will face an uphill battle because I think the logical consequence of such a finding is that you would likely be due all the pay you would have gotten had you not been discharged; My instinct is that they won't be inclined to grant that).

You may want assistance in drafting your appeal. If you think you need help, consider hiring an attorney or seeing if you can get assistance from the VSO in drafting the appeal.

Did this help? Do you have other questions?
 
Jason,
Thanks for the timely response. What I am trying to do is get reinstated. The problem with just re enlisting is that my surgery is cosidered a dq and I'm not sure that it can be waived. I am currently applying to the National Guard to see if that happens or not. Still too early in the process to determine yet. I was going to appeal the board on the basis that I was not given ample time to heal and that the advise I was given was based more on my age, rather than my medical history. There are a number of soldiers who have this kind of surgery every day, and are not recommended for a medical board and are allowed to continue on with there careers. I believe that because of my age, the doctors were a bit prejudice in their assumtions that I would not be able to do my job. I was asked by my surgeon at my 6 month follow up if I could run yet. I told him not very well. He said that if I couldn't run at 6 months, then I probably wouldn't be able to at the 1 year mark. My surgery was July 17th, 2006. One year later, I was already put out, and yet that day, as part of my normal work out, I ran 4 miles with no problems and I felt like I did before I had the injury. It is more acceptable to remain in the service with this type of surgery, than trying to enlist with it.
 
Some interesting issues

Rangerchuck,

You may have a basis for correcting your records for not being sufficiently stable for referral into the MEB/PEB process. However, I would be concerned that your acceptance of the informal PEB acted as a waiver of this issue. It doesn't mean you should not raise the issue, just pointing out the possible reply from the ABCMR. As I mentioned earlier, it may be that deficient counseling from the PEBLO is the best basis for the "error or injustice." I would include whatever facts you can to support the deficiency. I am thinking things like low rank of PEBLO if military, or inexperience, lack of explanations or wrong explanations of your rights, etc.

Reinstatement would be the best way to get to your goal of getting back in the Army. However, I still think they are going to be more likely to change your RE code rather than directly reinstating you.

I want to do some research on your question. These are my initial thoughts, I will post another reply here after I have a chance to look into the issues you have raised.
 
More on BCMR

Rangerchuck,

I consulted with an attorney who practices mostly in the area of administrative corrections. He indicated that it would not be as much of a stretch to get reinstated as I thought it might be. This is not to say it is a slam dunk, but rather a possibility.

I would ask for both reinstatement or in the alternative change to your RE code. As to what effect the RE code will have, I think you are smart to talk to a recruiter who will have the best info on the effect of this.

My colleague also indicated concern with what I mentioned, namely what is the error or injustice. If it is that you really were fit at the time of the PEB it will take a lot of evidence. See, one issue is that you got better over time and maybe were not fit when you were in the PEB process. That leads me to believe your best bet for error or injustice is the fact that you were referred to the PEB to early and should have had more time to recuperate. In the alternative, the PEBLO gave you deficient advice. This is different than not getting good advice. You need to show that the advice did not in some way meet the criteria of AR 635-40 or statute.

If it were me, I would claim both issues (wrong time for referral and deficient PEBLO counseling) an error and I would ask for reinstatement or in the alternative change to your RE code.

Please let us know any questions and I hope it works out for you. One thing on your side, I think, is that you are asking to serve instead of asking for an increased benefit. That takes the "profit" motive out of your request and makes you a more sympathetic applicant. You can't know the outcome until you apply and they make a decision, but I hope this information was helpful.
 
Jason,
Again, thanks for researching this for me. I contacted an AD recruiter today, and he told me that with a RE-3, it's a two year wait, and that if I had an upgraded RE code, then depending on an approved waiver, getting back in would be possible. Though, my first action is going to be to write the board and try and get this taken care of there. I am hoping that I can get this treated kinda like a TDRL, where if you are found fit, you are offered to continue back on active duty. I was planning to send documents from my physical therapist stating that I have no limitations, and passed the Department of Labor's strength test for heavy lifting. Also, The PEBLO was on the job about 1 month before my stuff ended up in his lap. He had transfered from a VA job working claims. Is the link to the board on this forum?? And any suggestions on how to word this request and do you think I need to get perhaps an orto doc to put in his 2 cents? I think stating to the board the need of qualified NCO's during this war will be a hard thing to argue against, especially if I am ready and willing to deploy again.
 
Options

Rangerchuck,

If you are talking about appealing directly to the PEB, I don't think this is a viable choice. The PEB only makes findings and recommendations, they have no independent power to re-open a case that the Army Physical Disability Agency has finally ruled on. However, this link to the APDA has the addresses to the individual PEB's if you scroll down the page near the bottom.

I think your recourse is with the ABCMR. Remember, what you are asking for is for them to find an error at the time your case was adjudicated. The challenge here is showing that you were improperly sent to the Board in the first place. The reason I say this is that if you were in fact unfit at the time and were sent there properly, then there was no error. Showing that you are better today does not help you show them a mistake was made in handling your case. So, it seems you have the choice of making this argument to try to get reinstated or else you are in the position of waiting two years (based on what the AD recruiter told you). Did the NG recruiter say the same? I would also recommend checking back with the recruiters periodically as the waivers and administrative regulations in this area seem to change frequently.

Hope this was helpful.
 
Thanks alot for all of your help Jason. I am going to write a letter to the ABCMR and try to detail that perhaps I was medical boarded too early, and was not given ample recovery time plus stress the lack of proper counseling with the new PEBLO I had. I am going to ask for re-instatement, or an upgrade to my RE code. Should I send in anything else with my letter?? PT documents, DR statements?? Or do they just review my case and make a determination based on those documents? I know the have an online application, but I don't see where you can send supporting documents.
 
You need to file DD Form 149

Rangerchuck,

This thread has the form that you need to send in to appeal. The address on the second page or back of the form is where you can send supporting documents along with the form. Do you have anyone helping you with this?
 
I am on my own doing this. I really don't have the money to hire an attorney, but I hope a well wrote appeal will suffice. Do you feel that going at this alone will be detramental to any success? And do you know how they approach these kind of appeals?? For example, do they call and talk to the doctor who wrote my NARSUM?, Or do they talk to the PEBLO and ask him how he counceled me, ect? I hope the motivation and diligance of the soldier taking the time and effort to do this is taken in consideration.
 
Ranger Chuck,

I would recommend you consider a 10 USC 1553 discharge review board first followed by a 10 USC 1552 Board for the Correction of Military Records if necessary.

ARBA has recently opined that if you go to the BCMR first, you can't go to the discharge review board. I don't believe their position is valid but until it gets straightened out, the DRB followed by the BCMR will give you two shots at correcting this issue.

The American Legion in DC will represent you free of charge at eithier board. They can be reached at 202-263-2992.

Also remember that there may soon be a DoD level review board established to review situations like yours.

Also remember that Dole/Shalala is recommeding that you receive a retirement annuity even at a 0% rating. That won't get you back on active duty but it will take the sting out of being dischrged with less than 20 years.

Regards,

Mike
 
The contents are what is important

Rangerchuck,

What is most important in any appeal is what is written, not who writes it. That being said, having someone who knows how to address the issues either assist you in writing it or reviewing it can help ensure you have addressed everything you need to.

The ABCMR basically looks at what your personnel file contains and any submissions you make. They don't investigate on their own as a general rule. They can ask for an advisory opinion from the APDA, but they don't have to. So, no, I don't forsee them picking up the phone and talking to the PEBLO, for example.

They will grant what they think the law requires them to or if they think your case is meritorious, what the law allows them to. The majority of cases are those seeking upgrade to discharges (other than honorable to honorable, for example) or expungement of Article 15's, etc. So, the fact that you have honorable service and are trying to get back in probably makes them view you in a more positive light. But they will only grant your request if the law allows it. That is why it is important that you demonstrate error or injustice in your case. If you can, they will grant your request.
 
Jason,
I am going to write the letter, but I am taking it to my local VFW rep. and have him go over it and help me with the language. Do you agree with Mike and that I should first appeal to the discharge review board? Thanks.
 
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