Don't know if this has been posted yet or not, if it is a duplicate I am sorry.
Stu
MCJA 8 December 2008
MEMORANDUM for COL Samuel Smith, MEDCOM SJA, 2050 Worth Road, Fort Sam Houston, Texas 78234
SUBJ: MEB/PEB Rebuttal and Appeal Provisions Contained in the 14 October 08 Revised and New Policies to Implement the National Defense Authorization Act for Fiscal Year 2008.
1. Purpose. To advise that the revisions and additions concerning rebuttal and appeal contained in the Revised and New Policies to Implement the National Defense Authorization Act (NDAA) for Fiscal Year 2008 are required to be implemented immediately. Therefore, to the extent any new or revised provision is contrary to existing Army Policy or Regulation, the new or revised provision controls.
2. Background. The Physical Disability Evaluation provisions of DoDI 1332.38 (Nov. 14, 1996) were revised and new provisions were added by the Under Secretary of Defense Policy Memorandum on Implementing Disability Related Provisions of the National Defense Authorization Act of 2008, dated 14 October 2008 (Policy Memorandum). By its express provisions, the Policy Memorandum must be immediately implemented by the Military Departments.
3. Discussion. (a) MEB-related sections: These sections are preceded by the following statement: “The Military Departments shall publish policies that ensure” and conclude with, “Medical evaluation participants shall be trained in accordance with this issuance and existing policy.” The Policy Memorandum contains a new provision E3.P1.2.6.1.2, which provides the Service member who has been referred into the DES with the option of requesting review of the MEB NARSUM by an impartial health professional, not involved in the Service member’s MEB process. If requested, the health professional has up to 5 calendar days to advise the Service member whether the MEB findings adequately reflect the complete spectrum of the Service member’s illnesses/ injuries. A new E3.P1.2.6.1.3 provides that, after review with the assigned impartial health care professional, the Service member shall be afforded the opportunity to request rebuttal of the MEB results. If requested, the Service member is afforded 7 calendar days to prepare a rebuttal to the convening medical authority. The convening medical board authority is then allowed 7 calendar days to consider the rebuttal and return the fully documented decision to the Service member. If rebuttal was requested, the MEB shall not be forwarded to the PEB until the rebuttal is finalized and results indicate the Service member may be unfit for duty. The implication is that if the Service member does not want impartial provider review, the Service member can still request rebuttal, and be allowed 7 days in which to prepare the rebuttal. The section requires that the fully documented rebuttal be included with the MEB information sent to the PEB, and a new E3.P1.6.4 provides that the rebuttal time is excluded in calculating the processing time for MEB (E3.P1.6.4).
(b) PEB-related section: E3.P1.3.3 added the following new requirement under the Informal PEB section: The Service member will be provided a minimum of 10 calendar days from receipt of the informal findings to rebut the findings of the Informal PEB and request a Formal PEB. That section also requires, that in addition to this timeline, Military Departments shall publish time lines for presentation and consideration of cases. Further, a new E3.P1.6.5 states that processing time for Duty-related PEB cases should not exceed 30 calendar days from the date the clinical summary is dictated to the date the complete case file is received by the PEB, excluding rebuttal time.
4. Conclusions. The new provisions for appeals in the Policy Memorandum establish mandatory minimum time limits. The fact that the proponent established that time devoted to rebuttals and appeals do not count in the calculation of total time for processing a case, along with express language in the Policy Memorandum clarify that the intent was to provide greater minimum times for Soldiers to rebut and/or appeal MEB and/or PEB findings. In my opinion, the express language of the Policy Memorandum indicates it supercedes all existing Policy to the contrary or that is more restrictive, including the shorter time period for appeals and rebuttals in AR 40-400 ( February 2008).
5. Recommendations. Immediate compliance with the expanded minimum rebuttal and appeals time frames, and immediate implementation of offering optional review by an impartial healthcare provider (Service member’s Primary Care Manager).
Stu
MCJA 8 December 2008
MEMORANDUM for COL Samuel Smith, MEDCOM SJA, 2050 Worth Road, Fort Sam Houston, Texas 78234
SUBJ: MEB/PEB Rebuttal and Appeal Provisions Contained in the 14 October 08 Revised and New Policies to Implement the National Defense Authorization Act for Fiscal Year 2008.
1. Purpose. To advise that the revisions and additions concerning rebuttal and appeal contained in the Revised and New Policies to Implement the National Defense Authorization Act (NDAA) for Fiscal Year 2008 are required to be implemented immediately. Therefore, to the extent any new or revised provision is contrary to existing Army Policy or Regulation, the new or revised provision controls.
2. Background. The Physical Disability Evaluation provisions of DoDI 1332.38 (Nov. 14, 1996) were revised and new provisions were added by the Under Secretary of Defense Policy Memorandum on Implementing Disability Related Provisions of the National Defense Authorization Act of 2008, dated 14 October 2008 (Policy Memorandum). By its express provisions, the Policy Memorandum must be immediately implemented by the Military Departments.
3. Discussion. (a) MEB-related sections: These sections are preceded by the following statement: “The Military Departments shall publish policies that ensure” and conclude with, “Medical evaluation participants shall be trained in accordance with this issuance and existing policy.” The Policy Memorandum contains a new provision E3.P1.2.6.1.2, which provides the Service member who has been referred into the DES with the option of requesting review of the MEB NARSUM by an impartial health professional, not involved in the Service member’s MEB process. If requested, the health professional has up to 5 calendar days to advise the Service member whether the MEB findings adequately reflect the complete spectrum of the Service member’s illnesses/ injuries. A new E3.P1.2.6.1.3 provides that, after review with the assigned impartial health care professional, the Service member shall be afforded the opportunity to request rebuttal of the MEB results. If requested, the Service member is afforded 7 calendar days to prepare a rebuttal to the convening medical authority. The convening medical board authority is then allowed 7 calendar days to consider the rebuttal and return the fully documented decision to the Service member. If rebuttal was requested, the MEB shall not be forwarded to the PEB until the rebuttal is finalized and results indicate the Service member may be unfit for duty. The implication is that if the Service member does not want impartial provider review, the Service member can still request rebuttal, and be allowed 7 days in which to prepare the rebuttal. The section requires that the fully documented rebuttal be included with the MEB information sent to the PEB, and a new E3.P1.6.4 provides that the rebuttal time is excluded in calculating the processing time for MEB (E3.P1.6.4).
(b) PEB-related section: E3.P1.3.3 added the following new requirement under the Informal PEB section: The Service member will be provided a minimum of 10 calendar days from receipt of the informal findings to rebut the findings of the Informal PEB and request a Formal PEB. That section also requires, that in addition to this timeline, Military Departments shall publish time lines for presentation and consideration of cases. Further, a new E3.P1.6.5 states that processing time for Duty-related PEB cases should not exceed 30 calendar days from the date the clinical summary is dictated to the date the complete case file is received by the PEB, excluding rebuttal time.
4. Conclusions. The new provisions for appeals in the Policy Memorandum establish mandatory minimum time limits. The fact that the proponent established that time devoted to rebuttals and appeals do not count in the calculation of total time for processing a case, along with express language in the Policy Memorandum clarify that the intent was to provide greater minimum times for Soldiers to rebut and/or appeal MEB and/or PEB findings. In my opinion, the express language of the Policy Memorandum indicates it supercedes all existing Policy to the contrary or that is more restrictive, including the shorter time period for appeals and rebuttals in AR 40-400 ( February 2008).
5. Recommendations. Immediate compliance with the expanded minimum rebuttal and appeals time frames, and immediate implementation of offering optional review by an impartial healthcare provider (Service member’s Primary Care Manager).