A Call for Resignation: Military Ignores the Law, Congress and DoD

Jason Perry

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The Walter Reed Scandal revealed unconscionable failures of leadership and in taking care of Wounded Warriors. Photos and reports of mold filled rooms, cheap mattresses, dead cockroaches and rodent droppings in Wounded Warrior's living quarters provoked outrage and led to Congressional hearings. Failures in Wounded Warrior management, care, and disability processing were revealed. In the aftermath, the Secretary of the Army and the Army Surgeon General were replaced. Congress and the senior military leadership promised swift reform and that the problems in the military disability evaluation system would be fixed. Moving forward, there would be fair evaluations and ratings for those injured Warriors who could not continue to serve. These promises were passed into law in January of last year by the 2008 National Defense Authorization Act. Ten months after this law was passed, the Department of Defense issued a directive to the Military Departments to implement the law. One of the most promising reforms was the grant to Wounded Warriors of the right to counsel from an impartial physician regarding the findings of the Medical Evaluation Board (MEB) and a "fully documented" written response to the concerns of the injured member from the MEB Convening Authority. However, the promise has not been realized. Since the Military Departments have failed to implement this law more than a year after its passage, I call on Secretary Gates to inquire of the Military Service Secretaries and the Chiefs of Staff and Naval Operations why they have not implemented the law and his order to do so. If they cannot pledge commitment to a plan for immediate compliance, he should demand their resignation.

Resignation is an extreme response and perhaps, if the failure to implement the law was based on an onerous requirement, the passage of time without execution of the order could be excused. However, an easy fix, requiring no additional expenditure of funds, could be implemented. A one day stand down with training for all PEBLOs and MEB Convening Authorities could immediately ensure that they know the requirements of the law. The Military Services could later publish regulations delineating responsibilities in implementing the law. However, given the easy fix, there is no excuse for not demanding immediate compliance or resignation.

More than a year after the law was passed and 6 months after the Secretary of Defense ordered compliance, the Military Departments have not implemented the law. As several members of this site have recently posted, they have requested the appointment of an Independent Medical Advisor and have been ignored. As a military disability attorney, I have had direct experience with the failure of the Military Services to comply with the law. Common issues at the MEB include the failure to include disabling injuries for rating, erroneous diagnoses, and a failure to provide required evaluation for rating. To illustrate, if a Wounded Warrior suffers from reactive arthritis, it is necessary to measure the limitation of the range of motion in all of their affected joints. Without this measurement, it is impossible to determine the degree of their disability and to assign a proper rating. The MEBs routinely fail to fully evaluate the range of motion limitations and refuse to address the Warrior's request for the evaluation. The Physical Evaluation Boards (PEBs) then claim that they cannot award a rating based on a lack of evidence.

When the law was first passed and even after the Secretary of Defense directed its implementation, I routinely requested on behalf of clients the appointment of an Independent Medical Advisor. I drafted letters requesting this (and even attached the law and the directive so that there would be no confusion about the requirements). The results were, to say the least, mixed. Uniformly, the requests were initially denied. In a few cases, after discussion, the local MEB acquiesced. However, in the majority of cases, the Physical Evaluation Board Liaison Officer (PEBLO) failed to forward the request to the proper authority, denied the request and claimed that the law did not apply. This happened as recently as yesterday. In one case, I requested the IMA during the MEB, and protested to the PEB that the request was denied. I got no response from the MEB, who then forwarded the incomplete case to the PEB. My protest to the PEB was answered with a response that the failure to provide the Independent Medical Advisor was an issue for the MEB, and not for the PEB, to address. This response ignores the fact that the PEBs are supposed to return incomplete cases to the MEB for further evaluation. Notably, the 2008 NDAA also mandates training for the PEBLOs and the PEBs in the requirements of the law. Obviously, this has not occurred.

To explain the importance and impact of the requirement for an Independent Medical Advisor, it is necessary to explain the function of the MEB and the PEB. The Medical Evaluation Board is charged with examining an injured member, documenting their injuries, and determining if their conditions meet retention standards. If they do not, the case is then forwarded to the PEB for a determination of benefits. The MEB Report is a critical document that provides the PEB with the evidence necessary to determine a Wounded Warrior's benefits. Think of the MEB as the body that gathers evidence and the PEB as the body that determines benefits based on the evidence. If a member's conditions are not accurately described by the MEB, it is impossible for the PEB to determine the proper benefits.

It is a central tenet of our Constitution that the Military is subordinate to our civilian leadership. Congress identified a failure to accurately rate Wounded Warriors and passed a law to address this issue. The President signed the law and the Secretary of Defense directed the Military Departments to comply. Yet, more than a year after Congress acted, the Military has not complied. It should not be incumbent on Wounded Warriors to first incur low ratings, be denied a full and fair hearing and then have to bear the expenses involved in fighting the illegal actions of the Military Services. Simply put, Secretary Gates should not permit further delay by the Military in implementing the law and his orders. If the Walter Reed scandal and the promised reforms meant anything, action is required now.

Note: There will be follow-up posts on how granting the right to the IMA can make the system much more efficient and a further explanation of why this right is so important.
 

jim1960

PEB Forum Regular Member
PEB Forum Veteran
Jason,

I could not agree more. I was discharged yesterday after months of screw ups on my discharge and still ended up with missing time on my DD214 and of course a poor rating on my medical percentage as you well know. As stated many times by many people it is sad the way the military treats its own people. I feel that many people at many levels need to resign and we need to get people in these positions that really care about doing the right thing, taking care of those that have put mission first and are now injured and deserve to be taken care of as we were promised.
 

Jack

PEB Forum Regular Member
PEB Forum Veteran
Jason,,

GOOD job and keep it up. You and mike and all else. This chit makes me furious. Thats why all the PTSD vets go off sometimes. Its not paranoia. When it smells like chit its because it usually is chit.

Ive take u and other takes on educating urslef and I have learned alot here and at VBN. And I havent even entered a MEB. HAvent even went before the MRB. JUst begun on my VA quest. BUT I have listened and read and researched and done all three agin hundreds of times. WHy I have posted the other day to do that. Not to be short with vets. But YOU have to MAKE time to do it for urself.

I have no doubt I will be in the best position possible by doing homewoek for a year before showing my cards to these imbeciles.

Please people MAKE the time to educate urself on this. Thats the ONLY way git what u deserve!!!!!!!!!!!!!!!!
Sorry for ranting.

OK> stick a fork in me Im done...

JACK
 

CSM493

PEB Forum Regular Member
PEB Forum Veteran
Registered Member
Very well said, Jason. You know, this story may be big enough to make a difference. Any plans on forwarding this to, let's say, the Washington Post?
 

carnelli53

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I'll go ahead and echo the praise of CSM, Jack, and Jim!

While I agree with all this I wonder why some kind of bureaucratic function has not been put in place (in lieu of Walter Reed) to punish action or inaction by the military in regards to the PDES.

Is there no legal remedy to this complete disregard for the law?

Like you said Jason, one day of stand-down training could bring many PEBLOs up to speed. I think one day of stand-down training for leadership throughout brigade level organizations would be helpful as well. Someone needs to light a fire under their *** and they need to stop screwing around in the name of 'deployments' and 'combat readiness'. Give me a break, I have plenty of thoughts on that which I will leave out. But anyway, well said and it would certainly make my day for someone to be held accountable for the B.S. Soldiers, Marines, Sailors, and Airmen (and women) have to deal with in the PDES.
 

Jason Perry

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Jason,

I feel that many people at many levels need to resign and we need to get people in these positions that really care about doing the right thing, taking care of those that have put mission first and are now injured and deserve to be taken care of as we were promised.
Jim,

That is exactly the point. It is not about retribution, it is about holding leaders accountable for their obligation to take care of Wounded Warriors and for following the law. What I am looking for is someone to demand compliance. If the leaders cannot implement a simple measure to safeguard the rights of wounded military members, they need to be replaced.

Jason,,

GOOD job and keep it up. You and mike and all else. This chit makes me furious. Thats why all the PTSD vets go off sometimes. Its not paranoia. When it smells like chit its because it usually is chit.

OK> stick a fork in me Im done...

JACK
Jack,

You are right to be furious. There is no excuse for this.

Very well said, Jason. You know, this story may be big enough to make a difference. Any plans on forwarding this to, let's say, the Washington Post?
CSM493,

That is the hope, that this post prompts some action. I do think this may need to go to the media. Waiting for the leaders to do what is required has not worked.

While I agree with all this I wonder why some kind of bureaucratic function has not been put in place (in lieu of Walter Reed) to punish action or inaction by the military in regards to the PDES.

Is there no legal remedy to this complete disregard for the law?
While I think that for military members in the leadership there is a possibility that this failure to follow orders and to properly execute their duties may be punishable under the Uniform Code of Military Justice, the most likely "punishment" for these failures would be resignation or relief for cause.

Standby for follow up posts on why providing the IMA would make the Physical Disability Evaluation System (PDES) much more efficient and why granting the IMA would ameliorate one of the most pernicious parts of the PDES.
 

builtgypsy

PEB Forum Regular Member
PEB Forum Veteran
Registered Member
I know at some levels it would be impossible to do so, but I think it would be a fantastic idea to offer those of us who have had problems in this system, as a way to help those who come after us, a job in the system. PEBLO, ombudsmen, department contact or customer service at MTFs or the PEB itself, just...something. I think it would go a long way towards helping.

I'd like to think if I could get a position as PEBLO I'd be kicking a$$ and taking names. :cool:
 

Jason Perry

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Why the IMA would save the government money

Note: This is a follow-up to my original post on the failure of the Military Departments to follow the law and the orders of the Secretary of Defense to implement provisions of the 2008 NDAA to provide the advise and counsel of an impartial health care provider (or Independent Medical Advisor) to members at the Medical Evaluation Board.

As an attorney who has represented more than 400 members going through the Physical Disability Evaluation System (PDES), I have a unique perspective on the potential impact of the provision of an Independent Medical Advisor to members going through a Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB).

Aside from the fact that the 2008 NDAA is law and the Secretary of Defense ordered (more than 6 months ago) compliance with the law, execution of the law would improve the efficiency of the PEBs, would result in fairer outcomes for Wounded Warriors, and would save money.

Under the current system, a member first goes to the MEB where an evaluation of all of the member's conditions is supposed to be performed. These results are then forwarded to a board of officers at the Informal PEB for an initial determination of benefits. If the member disagrees with the Informal PEB's findings, he or she can demand a Formal PEB. At the Formal PEB, the member has the right to counsel, to present evidence on his behalf, and to question any of the matters considered by the Formal PEB.

In the course of representing injured Servicemembers at the PEB, I have found that it is very common that the MEB fails to fully document the member's disabilities (I would estimate that this is an issue in at least 75-80% of cases). What this means is that the IPEB makes its initial determination based on incomplete evidence. The majority of MEBs currently do not respond to the member's concerns and it is rare that they revise their findings. The result is that the first "offer" of benefits from the IPEB is almost universally lower then the member actually deserves. The current system relies on the member disagreeing and demanding a formal hearing to present his/her evidence in order to receive an accurate rating. Had the IPEB had a fully documented case, the member would have received a higher rating and may have accepted the findings. Alternately, in some cases, a full evaluation would have provided the information necessary for the member to decide that the initial offer was fair and should be accepted.

Imagine the saved time, effort and resources, of both the IPEB and the member, had an accurately evaluated case gone forward. Government attorneys, Board members, support staff, and high ranking reviewing officers would all save time and, thus, money for the government by having to work on fewer cases. The solution to this problem? The Military Departments, if they followed the law and required the provision of the IMA and the fully documented response of the MEB Approving Authority, would ensure that the IPEB has a more accurate picture of the member's disabilities (it is worth noting that even without this law, the MEBs have always been required to fully document the member's conditions; their failure to do so was supposed to be addressed by the 2008 NDAA provisions that are discussed in this post).

By giving the member the opportunity to have advice of a medical professional to review his/her case findings early in the process and to have the identified concerns answered, the IPEB is much more likely to have an accurate basis to rate the member. The result is better ratings at the IPEB level, less work for the FPEB, and as a consequence, less work for the higher reviewing agency. This will result in a substantial savings of money on the government's side. Perhaps equally as important, the efficiencies will vastly improve the overall processing time for cases that do go forward to the FPEB.

A correct early rating will also save the member money in attorney's fees (if she/he elects civilian counsel at the PEB level or after leaving the military on appeal) and the value of money rightfully granted earlier (think lost value of money granted later, that is not paid with interest, had the member been rated correctly earlier in the process). Of course, this savings does not encompass the additional cost to the government of paying out monies that they would not have if they were able to wrongfully deny benefits. But this consideration has no place in a discussion of paying out benefits properly to the most deserving people, injured Servicemembers.

My point is that, while the Military Departments are required to follow the law, doing so will result in efficiencies that will ultimately save money. They have no choice but to follow the law, but I believe that it also makes good sense to do so.
 

SSgtsurvivor

PEB Forum Regular Member
Hey Jason, I was on here looking for some answers to a few questions and found this thread - you may have already started another thread about the subject and I haven't stumbed accross it yet, so forgive me if I'm telling you info on what you already know...
I'll ask my questions at the end of my post - I'm way tired and need to go to bed, it's been a long week! I have searched through the VA regs/ this board and googled, been to the VA office and still have questions LOL. I'll get to that in a minute.

First of all, let me tell you about what happened at AFPC when I went down for my board two weeks ago - it ties into what your thread is about.
I get there, go through the motions, have my appointment with the JAG, the DAV (oh, and NONE of it was nearly as scarey as I thought it would be - they didn't bite after all!!:p) So, Sunday night i sent you that message, then Monday morning I went in for my pre-board meeting with the JAG (WH - who is awesome by the way!! Really nice guy!) Before we get started he tells me that something had "come up on Friday" and it may have been the "loophole I was looking for" - he knew I just needed some extra time to get to where I needed to be for the PT test. He then proceeded to explain what happened on the previous Friday (Ok, now PLEASE, before anyone quotes me, please remember I was a wreck that day- not only was i facing the board in less than 2 hours, but earlier that morning someone had side-swiped the rental car i was driving and took off thankfully they came back, but no until after I sat there and stressed for 1/2 an hour... so, so the details are a little fuzzy, but I'm sure you can get clarfication.Ok, babbleing...

Anyway, he tells me that last year congress had inacted a law, that gave members who had a MEB started by their primary care doctor the right to a second opinion before they went through the formal board proceess. If I remember correctly he said that the other branches of the service had actual MEB doctors who started the process at the members home station/post ect. That way the member could take the Narrative and so on back to their regular doctor and have them look it over to make sure that everything was correct. (that part i think i got confused about) but basically he said that because I (and a whole bunch of other people) had not been informed of that right by our PEBLO's, we could either waive that right and still procede with the formal board as scheduled, or we could enact the right (or whatever you call it) go back to our duty section, and basically start the MEB process over again, getting re-evaluated by another doctor. (The process wouldn't be completely re-done, but it woudl give the member the oppertunity to review everything with a new doctor - and in cases like with my PCM, it probably could have meant the MEB would never have gone back down to AFPC (most of the stuff would have gone away) And if nothing else, it would give the member 2-3 more months to prepare for the board. SO, of course I took the oppertunity to redo my MEB.
Apparently they stopped a lot of MEBs from being sent to AFPC, as well as sent a few home that were waiting to go to the board. I'm thinking that is what you were talking about on this thread, if so - it's finally getting done.


Ok, soooo, later that night, as I am sitting in my room at billeting, talking on the phone with my 4 year old, she asks me when I am coming home. I told her in a couple days. She was very excited and asked me "if I was all done wif da Air Force". I told her no, and she got upset. Between her daddy and I we managed to get her to explain why she was so upset, and she said "'cause Momma, the Air Force makes you cry, and I don't like it when you cry"....
I thought about it, and she was right. I have been nothing but miserable for the past year, going to appointments, fighting with my stupid PCM, trying to convince him I am not as broken as he says I am. Then I realised, holy S*** I might possibly have to go through that again for the next 2-3 months, possibly 4, and for what? My husband is active duty with 20 years, I will get 20% severance, and with all the other stuff I have had I would get at least 50-60 % (or so I thought at that time ;)) from the VA. ENUF was ENUF...
The next morning I went back to the JAG, and accepted the original medical discharge,,,

I sat my happy little butt down in the DAV's chair and actually listened to him this time - and then when I left his office, I was so surprized, and didn't believe him (i just didn't think it was possible for it to be as "easy" as he said it was) So I called the DAV here, and then just to make sure, I called the DAV at my old base.... I didn't ask them all the questions I had, but the bottom line is I should get 100% (in fact I had enough "left over" to get 170% if it was possible - yep - using the "VA Math"

So, here is the question I cannot seem to find an answer to, or at least understand the one I am finding.

I understand UI and schedule 100% total and perm - one positive way of looking at my cancer is that I am blessed in the sense that I am that most of my "disibilaties" are from my cancer, and are in the "past", and will be permanent. I stll suffer from them in a sense (the scars, the reminders, but there are others out there far far worse off than me) and they aren't stopping me from going back to school.

Here are my "ratings" (of course nothing is definite til I get the letter from the VA, but most of my conditions are black and white - a mascetomy isn't gonna get any better...
(I actually have a couple more, bit these are the main ones, and the ones all three DAVs said were almost guaranteed)

7626 - radical masectomy, both = 80% (plus SMC k times 2)
7800 - Scars (multiple surgeries, acne - I had 6 of the 8 criteria) = 80%

***Those two alone are 96%***

7616 - total hysterectomy = 50% (plus SMC k)
6847 - sleep apnea requiring CPAP = 50%
7318 - gallbladder removal (under emergency)- 30%

The one that the original MEB was for - my back was rated at 20%

Ok, so after all that, my question is, other than the k rating, will I qualify for any other SMC rating?

THANK YOU SO MUCH for all your help, :)
S
 

Jason Perry

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Site Founder
Staff Member
PEB Forum Veteran
Registered Member
SSgtSurvivor,

Thanks so much for posting your experience. That is breaking news and good to hear that someone at the PEB or AFPC has gotten the message about the Independent Medical Advisor. I have been fighting this issue (actually as recently as last week) in a number of cases, so it is good to see that at least at the centralized PEB, there is concrete action being taken.

Your decision to accept the severance is understandable. I think that each member has to weigh the situation and to see what makes most sense for them. The retirement benefit is an important and valuable one, but it is not the only consideration. It sounds like you have made a decision based on your personal and family circumstances and I hope you feel good about the future. I am glad you have gotten through the system with an outcome that you are satisfied with.

As far as SMC, I don't see any other bases for award of SMC, but I am not sure if I have all the facts. I just posted this, which may be helpful:
Physical Evaluation Board Forum - PEB Library - VA Special Compensation ratings

I hope you have a smooth transition. Please let us know how things go for you!
 
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