Major Flaw in Army Post-FPEB Appeal Process

Under the guidance provided by Section 4.10.d.1 of DODI 1332.18, volume 1 dtd 24 Feb 2023, the SECDEF directed that every armed service should provide service members with the opportunity to submit either a written appeal or to provide them with a post-FPEB hearing. The Air Force and the Navy have established a post-FPEB hearings process and are in fact conducting such hearings as required by regulation. However, for the near future, the Army Physical Disability Agency has taken the position that they are unable to provide such hearings due to staffing issues. This response is in direct conflict with the SECDEF instruction.

For those of you who are appealing adverse Army FPEB findings, I would suggest that you discuss with your OSC or civilian counsel the merits of requesting a post-FPEB hearing in addition to preparing a written appeal. That way, if your request for a hearing is denied and your written appeal is not granted as well, you have preserved this issue to raise on an appeal before the ABCMR or in a federal court proceeding.
 

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johnbgately said:
Under the guidance provided by Section 4.10.d.1 of DODI 1332.18, volume 1 dtd 24 Feb 2023, the SECDEF directed that every armed service should provide service members with the opportunity to submit either a written appeal or to provide them with a post-FPEB hearing. The Air Force and the Navy have established a post-FPEB hearings process and are in fact conducting such hearings as required by regulation. However, for the near future, the Army Physical Disability Agency has taken the position that they are unable to provide such hearings due to staffing issues. This response is in direct conflict with the SECDEF instruction.

For those of you who are appealing adverse Army FPEB findings, I would suggest that you discuss with your OSC or civilian counsel the merits of requesting a post-FPEB hearing in addition to preparing a written appeal. That way, if your request for a hearing is denied and your written appeal is not granted as well, you have preserved this issue to raise on an appeal before the ABCMR or in a federal court proceeding.
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Mr. Gately, is this saying that the army is no longer doing formal appeals? What do you mean by "post-FPEB hearing"?
 
ericapeters2 said:
Mr. Gately, is this saying that the army is no longer doing formal appeals? What do you mean by "post-FPEB hearing"?
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No. They are doing FPEB which is post iPEB. In the regs there are provision for additional appeals after FPEB if you don't get the result you want. By the Army not following the regs you have a chance to still get it changed after you get out. So basically if you request a FPEB and the results aren't favorable you need to appeal for a post-FPEB hearing in writing so that when the hearing is denied you have legal standing to later on pursue correction based on the Army Physical Disability Agency not following the DOD regulations. If you don't pursue all legal avenues it would be much harder to argue for your unfavorable decision to be changed via ABCMR or in Federal Court.
 
oh, that makes more sense. this is really good information to know. thank you for your help!
 
Each of the military departments authorizes a service member to appeal the findings and recommendations of a formal PEB. Army appeals go to the U.S. Army Physical Disability Agency (USAPDA) pursuant to Army Reg. AR 635-40, ¶¶ 4-25.a.(2), 4-25.l. and Army Directive 2021-05 (Integrated Disability Evaluation System) (Mar. 16, 2021), ¶ 4.f. Air Force appeals go to the Secretary of the Air Force Personnel Council (SAFPC) pursuant to Air Force Instruction 36-3212, ¶ 3.38. Navy and Marine Corps appeals to go to the Secretary of the Navy Council of Review Boards (SECNAVCORB), see Navy Disability Evaluation System Manual, SECNAV M-1850.1, ¶ 8.a. (implementing SECNAVINST 1850.4F). Successful appeals to any of these organizations are few and far between.

In the National Defense Authorization Act for FY 2022, Congress mandated that an additional appeal of a formal PEB be put into place by each of the military departments. Implementing that legislation, the latest version of DoD Instruction 1332.18 posted on this site, at ¶ 3.3.d., authorizes an appeal of a formal PEB determination to an official designated by the secretary of the military department concerned. A service member may submit the appeal in writing or request a hearing at which the service member has the option to be represented by counsel.

The Navy and Air Force have implemented service procedures for the additional appeal mandated by DoDI 1332.18. The Army, claiming resource constraints, has failed to do so and as a result Soldiers are denied the additional appeal mandated by Congress and the DoD. Basically, the Army is knowingly and willfully violating statutory and DoD regulatory mandates and telling the Soldier “Too bad, deal with it. You have to follow the rules, but we don’t and there is nothing you can do about it.”

As noted in other posts, it is generally recommended that Soldiers nonetheless request the additional appeal, including a hearing, and submit a written appeal as well to preserve all issues and to avoid government claims of waiver should the case be reviewed at the U.S. Court of Federal Claims or a U.S. district court. However, to the extent that a Soldier seeks relief from the Army Board for Correction of Military Records (ABCMR) for issues the Soldier claims should have been but improperly were not considered in the erroneously denied appeal process, the ABCMR review of those issues is de novo. As a result, if the ABCMR denies relief on those issues and the case finds its way to Federal court, the Department of Justice will argue no judicial relief is warranted, with some likelihood of success, as any error arising from the procedural violation arising from the denied appeal process (which the DoJ will not admit occurred) is harmless error because the ABCMR fully considered the issues and nonetheless denied relief thereby curing the procedural error below and eliminating any prejudice to the Soldier.
 
ericapeters2 said:
Mr. Gately, is this saying that the army is no longer doing formal appeals? What do you mean by "post-FPEB hearing"?
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The Army still holds formal hearings, but they are not affording soldiers the post-formal hearing rights to a second post-FPEB hearing and only allow soldiers to file written appeals after a formal hearing. This is directly contrary to the procedure mandated by SEC DEF in Section 4.10.d.1 of DODI 1332.18, volume 1 dtd 24 Feb 2023,
 
In my 32 years of military service, I don’t remember telling my commander that I was too short handed to get my assignment done.
 
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