Jason Perry
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It is hard to remain calm after reading the Directive-Type Memo for the DOD/VA pilot program.
My first reaction is that it appears the pilot program denies Servicemembers the right to a full and fair hearing.
Title 10 USC, Sec. 1214 guarantees that "[n]o member of the armed forces may be retired or separated for physical disability without a full and fair hearing if he demands it." My read of the procedures for the pilot program is that they are going to deny Servicemembers this right to a full and fair hearing. Let me explain.
Read through these paragraphs from the DTM:
"6.11.1. For the purpose of the DES Pilot, the Military Departments will use their
PEB to determine a Service member’s fitness in accordance with existing policy
but will not assign disability ratings to conditions, other than adopting the DVA’s
rating(s) for unfitting conditions."
"6.12.3. Within 15 calendar days of the date of receipt from the PEB
Administration of a Service member’s written request for a one-time
reconsideration of a disability evaluation assigned by the DVA, the DVA DRO
will consider any new documentation or information from the Service member and
provide the PEB Administration updated ratings, if any. The DVA DRO will only
reconsider evaluations of ratings if new medical evidence is received, or the
member is able to provide sufficient evidence of an error to warrant the
reconsideration. The member is entitled to assistance in the preparation of this
reconsideration. This is a one-time “request for reconsideration” of the
rating(s) from the DVA Rating Board. Subsequent appeals of ratings to the
DVA must occur when the Service member has separated, attained veteran
status, and has been formally notified of the rating decision. There can be one
reconsideration for each unfitting condition. If a new condition is found to be
unfitting, reconsideration can be requested, even if other conditions have been
previously reconsidered."
Notice that there appears to be no opportunity whatsoever to personally appear with the assistance of counsel to argue rating. The only hearing is regarding fit/unfit decision. This makes the hearing a truncated procedure as the rating decision cannot even be addressed to the Formal PEB. If this is true, it appears this is a clear violation of due process and the rights guaranteed by Sec. 1214. It also appears that the first opportunity for meaningful review may not occur until an appeal to the Board for Veterans Appeals, much later than the current system provides.
I will be posting an analysis of the difference in likely time until review under the current system and the pilot program. This seems like a very disturbing development and a step backward in safeguarding the rights of Servicemembers.
My first reaction is that it appears the pilot program denies Servicemembers the right to a full and fair hearing.
Title 10 USC, Sec. 1214 guarantees that "[n]o member of the armed forces may be retired or separated for physical disability without a full and fair hearing if he demands it." My read of the procedures for the pilot program is that they are going to deny Servicemembers this right to a full and fair hearing. Let me explain.
Read through these paragraphs from the DTM:
"6.11.1. For the purpose of the DES Pilot, the Military Departments will use their
PEB to determine a Service member’s fitness in accordance with existing policy
but will not assign disability ratings to conditions, other than adopting the DVA’s
rating(s) for unfitting conditions."
"6.12.3. Within 15 calendar days of the date of receipt from the PEB
Administration of a Service member’s written request for a one-time
reconsideration of a disability evaluation assigned by the DVA, the DVA DRO
will consider any new documentation or information from the Service member and
provide the PEB Administration updated ratings, if any. The DVA DRO will only
reconsider evaluations of ratings if new medical evidence is received, or the
member is able to provide sufficient evidence of an error to warrant the
reconsideration. The member is entitled to assistance in the preparation of this
reconsideration. This is a one-time “request for reconsideration” of the
rating(s) from the DVA Rating Board. Subsequent appeals of ratings to the
DVA must occur when the Service member has separated, attained veteran
status, and has been formally notified of the rating decision. There can be one
reconsideration for each unfitting condition. If a new condition is found to be
unfitting, reconsideration can be requested, even if other conditions have been
previously reconsidered."
Notice that there appears to be no opportunity whatsoever to personally appear with the assistance of counsel to argue rating. The only hearing is regarding fit/unfit decision. This makes the hearing a truncated procedure as the rating decision cannot even be addressed to the Formal PEB. If this is true, it appears this is a clear violation of due process and the rights guaranteed by Sec. 1214. It also appears that the first opportunity for meaningful review may not occur until an appeal to the Board for Veterans Appeals, much later than the current system provides.
I will be posting an analysis of the difference in likely time until review under the current system and the pilot program. This seems like a very disturbing development and a step backward in safeguarding the rights of Servicemembers.