Author: M-VETS

By Summer 2017 M-VETS Student-Advisor

On July 26, 2017, President Trump issued a series of three tweets addressing transgender service in the U.S. Military.  He declared:[1]

The President’s “policy pronouncement” directly contradicts implemented DOD policy still actively listed on DoD’s website here. On July 28, 2015, then Secretary of Defense, Ash Carter, issued a Memorandum entitled, “Transgender Service Members” that allowed for open transgender service and stated:

…no Service member shall be involuntarily separated or denied reenlistment or continuation of active or reserve service on the basis of their gender identity, without the personal approval of the Under Secretary of Defense for personnel and Readiness. This approval authority may not be further delegated.[2]

Following Secretary Carter’s July 2015 Memorandum, DoD Instruction 1300.28 was issued and became effective October 1, 2016. It provides guidance for, among other things, how a service member can transition gender while serving.[3] In addition, the DOD issued “Transgender Service in the U.S. Military, An Implementation Handbook” in 2016.[4] The 72 page Handbook is, “designed to assist our transgender Service members in their gender transition, help commanders with their duties and responsibilities, and help all Service members understand new policies enabling the open service of transgender Service members.”

Article II Section 2 of the U.S. Constitution, states that “the President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.” As Commander in Chief, the President’s powers are quite broad. However, whether the President, in his capacity as Commander in Chief, has the ability to change DoD policy via Twitter is an open question.

Common sense would dictate that, without a formal modification to DoD regulations, an announcement via Twitter would not effectuate a policy change. The President of the National Institute for Military Justice, Dru Brenner-Beck suggested that, “a tweet doesn’t really give you policy.”[5] She further indicated that under normal procedure, the President would issue an executive order instructing the Pentagon to amend its personnel policy that wouldn’t begin without extension coordination between DoD and various parts of the military.[6] Following that, Implementation Guidance, or formal directives would then be expected from the Secretary of Defense according to U.S. Army Chief of Staff Gen. Mark Milley.[7]

Because of the unconventional nature of the President’s “policy pronouncement,” its impact on the DODs implemented policy caused massive confusion. However, at this juncture, the Pentagon does not seem inclined to execute policy based on the President’s tweets. On July 27, a day after President Trump announced his transgender position on Twitter, Chairman of the Joint Chiefs of Staff, Gen. Joseph Dunford, Jr., issued a Memorandum to Service Chiefs, Commanders and Senior Enlisted Leaders stating:

I know there are questions about yesterday’s announcement on the transgender policy by the President. There will be no modifications to the current policy until the President’s direction has been received by the Secretary of Defense and the Secretary has issued implementation guidance.[8]

Following the President’s Tweets, a senior military official stated, “I hope our commander in chief understands that we don’t transmit orders via Twitter, and that he can’t, either.”[9] While it is legally ambiguous as to what the President’s tweets can do – he would be wise to heed this advice. Rash statements of policy on intricate issues serve no one’s interest, and the Pentagon should continue to require more than a tweet to begin the formulation of new policy.

[1] Donald J. Trump (@realDonaldTrump), Twitter (July 26, 2017, 8:55 a.m., 9:04 a.m., 9:08, a.m.), https://twitter.com/realDonaldTrump.

[2] https://www.defense.gov/Portals/1/features/2016/0616_policy/memo-transgender-service-directive-28-July-2015.pdf.

[3] https://www.defense.gov/Portals/1/features/2016/0616_policy/DoD-Instruction-1300.28.pdf.

[4] https://www.defense.gov/Portals/1/features/2016/0616_policy/DoDTGHandbook_093016.pdf.

[5] https://www.politico.com/story/2017/07/26/trump-transgender-troops-ban-240998.

[6] Id.

[7] https://dailycaller.com/2017/07/27/we-dont-execute-policy-based-on-a-tweet-pentagon-yet-to-receive-trumps-transgender-ban-order/.

[8] https://uk.reuters.com/article/uk-usa-military-transgender-exclusive-idUKKBN1AC2FB.

[9] https://www.reuters.com/article/us-usa-military-transgender-exclusive-idUSKBN1AC2FN?il=0.

By Spring 2017 M-VETS Student-Advisor Monica Martinez

Native Americans have served our nation valiantly and with distinction in times of peace and war, while also fighting for the right to be an equal part of this very nation. To honor their legacy, Patriot Nations: Native Americans in Our Nation’s Armed Forces, an exhibition that tells the history of American Indian and Alaska Native men and women who have served in the United States military, will be available for viewing until January 18, 2018 at the Smithsonian Institution’s National Museum of the American Indian (NMAI) in Washington, D.C.

NMAI will also be the site of the National Native American Veterans Memorial, a project authorized by Congress in December 2013 with an anticipated dedication date of Veterans Day, November 11, 2020. The memorial will highlight the bravery, contributions, and sacrifices of American Indian, Alaska Native, and Native Hawaiian veterans during their military service. The $15 million memorial project, which will receive no federal funds, tasks NMAI and the National Congress of American Indians (NCAI)—an advocacy organization—with accepting contributions for, and paying the expenses of its establishment. To garner support and community input for the memorial, an advisory committee consisting of Native representatives from various tribes and branches of service will conduct a series of consultations this summer. There have been 30 such consultations to date and several more are planned over the next few months.

Commitment to Military Service

Native Americans comprise a rapidly growing segment of the U.S. military and veteran population. Yet military service has not been without sacrifice. Native Americans have honorably defended the U.S., despite a tragic history of cultural suppression, broken treaties, and confinement to reservations. At home, Native American veterans are some of the most revered members of their communities, recognized on special occasions through ceremonies and dances performed in their honor. Native Americans’ reasons for serving in the military are complex. While some see military service as an extension of their warrior traditions, or believe in a sacred purpose to protect their land, others join simply to fulfill the patriotic sense of duty felt by every American.

The Department of Defense estimates that some 31,000 American Indian and Alaska Native (AIAN) men and women are on active duty. According to the Census Bureau, more than 140,000 veterans self-identify as AIAN. American Indians have the highest per capita commitment to military service than any other ethnic group in the United States.

Overview of Native American Military Service

Native Americans served in the Army in every war in America’s history, as well as during peacetime, and even when unrecognized as American citizens. Additionally, 25 Native Americans have received the nation’s highest award for valor, the Medal of Honor. Below is a selection of highlights as compiled by the Department of Defense of Native American military service through the years.

 Ira Hayes – Iwo Jima Flag Raiser

On Feb. 23, 1945, to signal the end of Japanese control, Ira Hayes and five other’s raised the U. S. flag atop Mount Suribuchi on the island of Iwo Jima. Three of the six men were killed while raising the flag. The heroic act transformed Hayes’ life forever. Hayes was a full-blood Pima Indian from Arizona, and is buried in Arlington Cemetery. The Ballad of Ira Hayes, a popular folk song performed by Johnny Cash, tells his story.

Early Wars (before World War I)

Many tribes were involved in the War of 1812, having fought for both sides as auxiliary troops in the Civil War. The Indian Scouts were established in 1866 and remained active for the remainder of the nineteenth century and the early twentieth century.

 World War I

Roughly 12,000 Native Americans served in the military during World War I. Four Native Americans serving in the 142nd Infantry of the 36th Texas-Oklahoma National Guard Division received the Croix de Guerre medal from France.

World War II

Over 44,000 Native Americans served between 1941 and 1945, (from a population of less than 350,000). Native American military personnel worked as cryptologists, using their Native languages to encode messages so that enemy code-breakers could not decipher them. Alaska Natives were a significant presence on the Alaska Combat Intelligence Detachment. This outfit was the first ashore on each island occupied by Allied forces in the Aleutian Campaign. Women contributed to war efforts through volunteer emergency service (WAVES), Women’s Army Corps, and Army Nurse Corps.

Marine Corps Women Reservists, Camp Lejeune, North Carolina, Oct. 16, 1943. From left, Minnie Spotted Wolf (Blackfoot), Celia Mix (Potawatomi) and Viola Eastman (Chippewa).

Korean War

Approximately 10,000 Native Americans served in the military during this period. Three were awarded the Medal of Honor.

Vietnam War

More than 42,000 Native Americans served in the military in the Vietnam Era, and over 90 percent of those servicemembers were volunteers.

Post-Vietnam Era

Native American servicemembers continued to serve in high numbers after the Vietnam Era—in Grenada, Panama, Somalia, the Gulf War, and in Operation Enduring Freedom (OEF), Operation Iraqi Freedom (OIF), and Operation New Dawn (OND).

Master Sergeant Joshua Wheeler (Cherokee, 1975–2015) was a member of the army’s elite Delta Force and the recipient of 11 Bronze Stars during his military career. Wheeler died on Oct. 22, 2015, while rescuing prisoners from the Islamic State (ISIS) near Hawijah in northern Iraq. He was the first known U.S. military casualty in the fight against ISIS.

Challenges Facing Native American Veterans

Native American communities are committed to creating paths to education, active citizenship, career development, and improved health outcomes for returning servicemembers and veterans in order to ease the transition home, but challenges remain. American Indian and Alaska Native (AIAN) veterans, for example, are less likely to have an advanced degree compared to veterans of other ethnic groups. AIAN populations also have lower personal incomes than veterans of other ethnic groups and, though the unemployment rate for all veterans has risen since the economic downturn, the unemployment rate for those living on tribal lands has been higher. Further, AIAN veterans are more likely to lack health insurance and to have a disability, service-connected or otherwise, than veterans of other ethnic groups. In the area of mental health, increasing evidence shows that Native American veterans have the highest rate of PTSD of any ethnic group. Significant barriers to identifying and treating these conditions include lack of sufficient health literacy and confusion regarding eligibility for veterans services or the types of services available. However, geography poses the greatest challenge to receiving care, since reservations in rural and remote areas are at great distances from medical facilities. For veterans within or near rural communities, it can be also be difficult to receive representation for benefit claims because they cannot reach existing veterans service organizations (VSOs) or may not use them due to cultural barriers.

Federal Benefits for Native American Populations

The U.S. Department of Veterans (VA) affairs works through tribal governments to provide benefits and services to Native American veterans. VA has tried to address the lack of benefits representation in Native communities through a rule change in the Code of Federal Regulations (38 CFR 14.628). The change will allow eligible tribal organizations to become accredited by the VA to provide assistance on benefit claims. Other resources include the VA Veterans Benefit Administration (VBA), which administers a Native American Direct Home Loan (NADL) program with assistance from the Office of Tribal Government Relations (OTGR); and the VA Veterans Health Administration (VHA) Office of Rural Health, which administers telemental health clinics that provide mental health services remotely to rural veterans. Also, a new program through the Tribal HUD-VA Supportive Housing (Tribal HUD-VASH) program will provide rental assistance and supportive services to homeless Native American veterans or those at risk of homelessness. (This list provides only a brief overview of federal benefits available to Native American veterans.)

I. Veterans Service Organizations

The VA issued a final rule on January 19, 2017, to amend its regulations concerning recognition of certain national, state, and regional or local organizations for purposes of VA claims representation. Specifically, the rulemaking allows the Secretary to recognize tribal organizations in a similar manner as the Secretary recognizes state organizations. The final rule allows a tribal organization that is established and funded by one or more tribal governments to be recognized for the purpose of providing assistance on VA benefit claims. It also allows an employee of a tribal government to become accredited through a recognized state organization, similar to County Veterans’ Service Officer (CVSO) accreditation. Accredited tribal organizations will provide veterans with better, more culturally competent services through stringent requirements meant to secure long-term, quality representation.

II.  VA Direct Home Loan Program

VA provides direct home loans to eligible Native American veterans to finance the purchase, construction, or improvement of homes on Federal Trust Land, or to refinance a prior NADL to reduce the interest rate. To obtain a NADL, the law requires that the tribal government must have signed a Memorandum of Understanding (MOU) with the Secretary of Veterans Affairs. The MOU spells out the conditions under which the program will operate on its trust lands. The NADL will allow Native American veterans to reintegrate more easily into civilian working life and to secure a brighter future for their families.

III. HUD Supportive Housing Program

Tribal HUD VASH, a new program, is estimated to benefit 500 Native American veterans through the form of housing and supportive services. The program will combine $5.9 million in rental assistance from HUD with case management and clinical services provided by VA. Veterans who are homeless or at risk of homelessness and who are living on or near a reservation or other Indian areas are eligible for assistance. Through this innovative program, HUD hopes to help tribes move one step closer to ending veteran homelessness once and for all.

As the foregoing demonstrates, partnerships between Native American communities and federal government agencies have the potential to enhance the health, social, and economic outcomes not only for the returning Native servicemember, but for his entire family.

Patriot Nations

Just as the NMAI exhibition introduces many museum patrons to the historical sacrifices of Native Americans in the armed forces, the National Memorial will stand as a stunning tribute in the nation’s capital to allow us to reflect on that legacy of service. At the same time, we must continue to recognize and address the challenges inherent in serving Native American veterans. Cultural barriers, lack of information, and geography are a few factors that prevent Native American veterans from receiving excellent service-connected care and benefits. Through continued partnerships with national advocacy organizations like NCAI, and federal government agencies, these and other critical issues can be addressed in a forthright, effective manner and eventually overcome.

By Spring 2017 M-VETS Student-Advisor Larry Lohmann

Last month President Trump signed the Veterans Choice Improvement Act, an extension of the Veterans Access, Choice, and Accountability Act of 2014 or Veterans Choice Act. The Act, originally passed and implemented during the Obama administration, requires hospital care and medical services to be furnished to veterans through agreements with specified non-Department of Veterans Affairs (VA) facilities if the veterans do not live close to VA medical facilities.  The president signed the bill to extend the Choice program, which had a sun-setting provision set to expire on Aug. 7, and allow the expenditure of the remaining $950 million in the program.

Under the original Veterans Choice Act Congress made services available to Veterans that had been unable to schedule an appointment at a VA medical facility within the Veterans Health Administration’s (VHA’s) wait-time goals for hospital care or medical services. The original Choice Card program allowed Veterans facing extensive wait times at Veterans Administration facilities or living more than 40 miles from the nearest VA to seek care in the private sector.

Seeking to further extend care for Veterans, Rep. Phil Roe, Chairman of the House Veterans Affairs Committee, stated in February of the bill, “If you feel that you’re not getting the care at the VA hospital, you should have a choice to go where you want to. I want you to have the absolute best health care that can be provided by anybody in the world. You should have that as a veteran.” In that vein, Veterans already participating in the program will not need to re-apply under the new bill the president signed last month and using this program does not impact existing VA health care, or any other VA benefit. Veterans participating in Veterans Choice Program will continue to receive care from providers in their community.

Perhaps the most important change that comes with the new Veterans Choice Act is it directs the VA to cover co-pays and deductibles directly for private care rather than reimbursing veterans for paying up front. Previously, some community providers had to bill the Veterans’ private health insurance and Veterans Choice Programs separately with Veterans paying out of pocket for services. This implementation addresses a major complaint that was voiced by Veterans service organizations, such as the American Legion. In addition to directing the VA to cover co-pays and deductibles, the new Act is supposed to untangle the web of multiple community-care programs and streamline access for veterans across this country.

In the original version of the Veterans Choice Act the VA had a restriction different from other health-care providers regarding the exchange of health information. This law removes these restrictions and ensures that community providers have access to appropriate health information for Veterans, and brings VA in line with other health-care providers and federal standards related to the exchange of health information. The VA is emphasizing that this new change does not create an exception to, or weaken the protections of the Health Insurance Portability and Accountability Act (HIPAA). This implementation should lead to improved quality of care for Veterans, as access to their medical records will be easily available to their local health care providers.

The extension of the Act is the one of the major legislative accomplishments of the Trump administration thus far and is one that has proven to have wide bi-partisan support. The bi-partisan support is evident with VA Secretary Dr. David Shulkin remaining in place as the head of Veterans healthcare administration. Shulkin, the only holdover in the Obama administration in the Trump Cabinet and the only cabinet member to win unanimous confirmation in the Senate, said at the signing ceremony that the Choice extension was a precursor of “the great things that are to come to fulfill the president’s commitments that he made to veterans.”

Shulkin’s comments are important because while this Act is an improvement from the previous version and an extension of it, it is far from a complete solution to all of the VA’s problems. Shulkin is slated to make proposals to Congress this fall to better integrate the VA with the private sector, overhaul the Choice program further, and to give veterans more options for private care. These proposals will be crucial to the future for VA services for many Veterans that use the Veterans Choice Program because the funds for the current program will likely be exhausted by January 2018.

Important Highlights made by the VA

• The law did not change eligibility for the VCP. Please refer to the VCP website for information regarding eligibility here: https://www.va.gov/opa/choiceact/
• The Choice law requires Veterans to provide VA with their private health insurance information in order to use the program. The new law means that Veterans will no longer be responsible for cost- shares/co-pays associated with their private health insurance. It also means community providers will no longer have to bill a Veteran’s private health insurance and the VCP; they will only have to bill the VCP.
• This law does not put any health insurance information at risk. Previously, VA had restrictions different from other health-care providers regarding the exchange of Veterans’ health information. This law removes those restrictions and ensures that community providers have access to appropriate health information for Veterans, and brings VA in line with other health providers and federal standards related to the exchange of health information.
• The law allows VA to use the remaining funds available for the VCP. VA has partnered with Congress to work though remaining legislative needs to build a single, community care program. This law makes meaningful improvements for the VCP, but more needs to be done. The law is a bridge to allow VA time to partner with Congress and all of its stakeholders to create one community care program that is simple to administer, easy to understand and meets the needs of Veterans and their families, community providers and VA staff.

Sources

Public Law No: 113-146, H.R.3230, Veterans Access, Choice, and Accountability Act of 2014 – Title I: Improvement of Access to Care from Non-Department of Veterans Affairs Providers (08/07/2014) available at https://www.congress.gov/bill/113th-congress/house-bill/3230

Public Law No: 115-26, S.544, A bill to amend the Veterans Access, Choice, and Accountability Act of 2014 to modify the termination date for the Veterans Choice Program, and for other purposes. (04/19/2017) available at https://www.congress.gov/bill/113th-congress/house-bill/3230

Steve Brooks, Privatization, Choice Program hot topics during Commander’s Call, February 28, 2017, available at https://www.legion.org/washingtonconference/236354/privatization-choice-program-hot-topics-during-commanders-call

Richard Sisk, Trump Signs Bill to Extend Veterans Choice Program, April 19, 2017, available at https://www.military.com/daily-news/2017/04/19/trump-signs-bill-extend-veterans-choice-program.html

Veterans Choice Program Law changes fact sheet APRIL 19, 2017, Available at https://www.va.gov/opa/choiceact/documents/Choice%20Extension%20Fact%20Sheet%20FINAL%20April%202017_508.pdf

By Spring 2017 M-VETS Student-Advisor Rodger Nayak

The U.S. Department of Veterans Affairs has sought to make it easier for certain veterans stationed at Camp Lejeune, North Carolina, between August 1, 1953, and December 31, 1987, to obtain disability compensation.

The VA awards disability compensation benefits to servicemen and women with injuries that were incurred or aggravated during active military service. A new rule issued by the VA seek to make it easier for veterans with one of eight specified illnesses who were stationed at Camp Lejeune between the 1950s and 1980s to prove that they are entitled to disability benefits.

The new rule was issued because of contamination in the water supply at Camp Lejeune from the 1950s to 1980s. Marines and their families who were stationed at the base were likely exposed to dangerous chemicals such as trichloroethylene, perchloroethylene, vinyl chloride, and benzene. Under the new rule by the VA that became finalized in March, veterans with one of several diseases can obtain disability compensation if they were stationed at Camp Lejeune while the contamination was present in the water supply. The rules establish several diseases as presumptively service-connected for these veterans.

Before the issuance of these rules, the VA had already awarded disability benefits to at least one veteran after being stationed at Camp Lejeune. In March 2010, the VA had awarded benefits to Paul Buckley, who developed bone marrow cancer after serving at Camp Lejeune.

The VA issued its Camp Lejeune final rule on January 13, 2017, with an effective date of March 14, 2017. Veterans must have served at least 30 days on the base during the eligibility period, and have developed one of eight diseases, to fall within the rule’s eligibility criteria. The diseases covered by the rule are kidney cancer, liver cancer, non-Hodgkin’s lymphoma, adult leukemia, multiple myeloma, Parkinson’s disease, aplastic anemia and other myelodysplastic syndromes, and bladder cancer.

The issuance of the rules follows action by Congress. In 2012, Congress passed the Camp Lejeune Act, which permits veterans who served at Camp Lejeune and sustained one of fifteen illnesses to obtain health care at a VA facility. Some criticized the proposed VA rule on the grounds that it covers fewer diseases than does the Camp Lejeune Act.  The VA in response said there is insufficient evidence that certain diseases covered by the Camp Lejeune Act would have arisen as a result of exposure at Camp Lejeune.

Organizations have continued to investigate and study the exposure at Camp Lejeune. On May 11, 2017, the Centers for Disease Control indicated it would conduct a cancer incidence study at Camp Lejeune. The study would include 463,922 cohort members and seek to determine if there is an association within this cohort between exposure at Camp Lejeune and specific cancers.

By Spring 2017 M-VETS Student-Advisor Rebecca Eubank

When a servicemember is injured on active duty or diagnosed with a condition that leaves him unable to perform his assigned duties, his case is referred to the Integrated Disability Evaluation System (IDES). While this process can be long and at times confusing, knowing the possible outcomes at each step of the process should inform the servicemember’s decisions. [1].

First things first, is the condition duty related?

When a condition is identified that inhibits a servicemember’s ability to perform his duties, one of the first questions that must be addressed is whether the injury or medical condition was sustained in the line of duty. Typically, conditions diagnosed while the servicemember is on active duty are considered duty related. [6]

When is a condition not incurred in the line of duty?

The easiest answer is that any medical conditions that were identified at the time the servicemember enlisted will not be considered in the line of duty. Also, if a condition was incurred during an unexcused absence or even if the condition was due to misconduct or negligence, then the condition may not be found to be in the line of duty. In some cases, a line of duty investigation may be established to make this determination. [5]

What if a condition that predates military service gets worse while on active duty?

In these cases, the condition was identified before the servicemember enlisted, but it was determined that the condition would not inhibit his ability to perform his duties. However, if active military service permanently aggravated this condition to the point that the servicemember is no longer fit for duty, the condition may be considered in the line of duty. This is not the same as the natural progression of the illness. [5]

What happens after a condition is diagnosed?

When a servicemember has suffered an injury while on active duty or otherwise diagnosed with a serious medical condition, the servicemember’s case will be referred to a Medical Evaluation Board (MEB). Generally, there will be two physicians on the Board. A third physician is required in cases where the servicemember has a mental health condition. The MEB assesses whether the injuries significantly interfere with the servicemember’s ability to perform the physical duties required of all servicemembers.  The MEB’s goal is to determine if the servicemember’s conditions are medically acceptable for continued service. Each branch of the military maintains its own standards of medical acceptability. While documentation of the servicemember’s treatment is supplied by the medical team treating, the servicemember may submit a personal statement about his condition and how it affects his performance. [2]

Outcomes:

The MEB will either determine that the servicemember’s condition is medically acceptable, and the servicemember will be returned to active duty, or determine the condition is medically unacceptable and the case will be referred to a Physical Evaluation Board (PEB).

If the MEB determines a condition/s is medically unacceptable, and the condition is not in the line of duty, then the case may be referred to a Non-Duty Related Physical Evaluation Board.

What is a Non-Duty Related Physical Evaluation Board?

A non-duty related Physical Evaluation Board (NDR-PEB) may be established where a MEB determines that a servicemember has a condition, not in the line of duty, that inhibits the service member’s ability to perform his duties. The only determination that a NDR-PEB makes is a final determination of whether a non-duty related condition is unfitting for continued military service. Unlike its counterpart for duty related conditions, the NDR-PEB does not assign a rating for disability compensation. [7]

Outcomes: The only determination that the NDR-PEB may make is whether the servicemember’s condition renders him unfit for service. The servicemember has several choices at this stage. Regardless of his choice, it is beneficial to seek guidance from the Office of Soldier’s Counsel or another source. The servicemembers options are:

(Option 1) Agree with the PEB’s decision and waive a formal hearing. If the servicemember agrees at this stage, it will be very difficult to argue at a later date that the condition found to be unfitting is actually service connected and that the servicemember should be compensated accordingly.

(Option 2) Disagree with the PEB’s decision but waive a formal hearing. In this case, the servicemember may submit a written appeal.

(Option 3) Disagree with the PEB’s decision and demand a formal hearing with or without a personal appearance. If the servicemember requests a formal PEB, he should consider obtaining legal counsel either from an on base Legal Services officer or from an outside source. The purpose of a formal hearing is to provide the servicemember and his counsel with an opportunity to present new evidence, either medical or non-medical, that was not previously available. The formal hearing also provides the servicemember an opportunity to address the Board directly and make a case for a different disposition of his case.

What is a duty related Physical Evaluation Board?

A duty related Physical Evaluation Board (PEB), simply referred to as a PEB, makes a final determination as to whether a servicemember is fit for duty. The MEB’s findings will be forwarded to the PEB who will issue informal findings. Like the MEB, an informal PEB is made up of several doctors. [2].

Outcomes: The PEB may make one of several decisions:

1. Find that the servicemember is fit for duty and return him to duty.
2. The PEB will assign ratings that the Department of Veterans Affairs has provided concerning the unfitting condition/s. If the unfitting condition/s are above 30%, the Servicemember will either be placed on the Temporarily Disabled Retired List (TDRL) if the unfitting condition/s are not stable or the Permanently Disabled Retirement List (PDRL) if the unfitting condition/s are considered permanent and stable. The PDRL will result in a medical retirement from the military with disability retirement pay. If placed on the TDRL, the condition/s will be monitored for up to 5 years to evaluate whether the servicemember is fit for service.
3. If the unfitting condition/s are rated by the VA at below 30%, the servicemember will be separated from with severance pay. Further, if the condition/s was found not to have been incurred in the line of duty, the Board may recommend separation without any compensation. [3].

Appealing the PEB decision.

After the informal PEB makes a decision, the next steps are in the servicemember’s hands. Regardless of the PEB’s decision, the servicemember has several ways he may respond. It is important to fully understand the consequences of each of these responses.

The servicemember’s options are:

(Option 1) Agree with the informal PEB finding. This means that the servicemember fully agrees with the Boards determination of his fitness and with all unfit ratings. If the servicemember agrees at this stage it will be difficult later to make an argument that the servicemember wants a different outcome.  Except in extenuating circumstances, review Boards have declined to alter the disposition of a PEB’s decision when the servicemember agreed with the outcome.

(Option 2) Disagree and request a formal PEB with or without a hearing. If the servicemember requests a formal PEB, he should consider obtaining legal counsel either from an on base Legal Services officer or from an outside source. The purpose of a formal hearing is to provide the servicemember and his counsel with an opportunity to present new evidence, either medical or non-medical, that was not previously available. The formal hearing also provides the servicemember an opportunity to address the Board directly and make a case for a different disposition of his case.

(Option 3) If medically separated or retired after a formal PEB, the servicemember may appeal further service’s Board for Correction of records. [4].

More information about each of these boards can be found here:

Army: Army Board for Correction of Military Records (ABCMR): https://arba.army.pentagon.mil.

Navy and Marine Corps: Board for the Correction of Naval Records (BCNR): https://www.donhq.navy.mil/bcnr/bcnr.htm

Air Force: Air Force Board for Correction of Military Records (AFBCMR): https://www.afpc.af.mil/afveteraninformation/airforceboardforcorrectionofmilitaryrecords

Sources:

[1] The Integrated Disability Evaluation System, Military Disability Made Easy, https://www.militarydisabilitymadeeasy.com/integrateddisabilityevaluationsystem.html

[2] The Military Medical Evaluation Process, Military One Source, https://www.militaryonesource.mil/health-and-wellness/wounded-warrior?content_id=282472

[3] Wounded, Ill and Injured Compensation and Benefits Handbook, Defense Department, https://warriorcare.dodlive.mil/files/2011/11/Compensation-and-Benefits-Handbook-May-2014.pdf

[4] SECNAV INSTRUCTION 1850.4E, https://www.secnav.navy.mil/mra/CORB/Documents/SECNAV%20INST%201850_4e.pdf

[5] Army Regulation 600-8-4 (Line of Duty Policy, Procedures, and Investigations)

[6] Military Medical Policies, Military Law Task Force, https://nlgmltf.org/military-law-library/publications/military-medical-policies/

[7] Army Regulation 635-40, Physical evaluation for Retention, Retirement, or Separation.

[See generally] Physical Disability Evaluation System PDES Q and A, https://www.hrc.army.mil/TAGD/Army%20Physical%20Disability%20Evaluation%20System%20PDES.

[See generally] Navigating the Disability Evaluation System, https://www.realwarriors.net/active/disability/disability.php#_end3

Written By Spring 2017 M-VETS Student-Advisor Anne Kidd.

On December 23, 2016, President Obama signed into law the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2017 (“FY17 NDAA”). The NDAA is an annual occurrence and is one-half of the federal budgetary process for the Department of Defense.

Background. At the most fundamental level, executive agencies in the federal government require two laws to operate: (1) an authorization law, which delineates what the government is allowed to do and may also recommend funding required to do those things, and (2) an appropriations law, which permits the release of funding to agencies to actually go and do those things.  If one fiscal year ends without these laws in place, Congress may pass a Continuing Resolution (CR), which allows the government to continue doing what it has been doing at the same level of funding.  As we saw in 1995, 1996, and again in 2013, without an appropriations law or a CR in place, the federal government shuts down.

Why should you care?  “Defense-related” programs authorized by the NDAA include personnel programs that directly impact pay and benefits, including allowances, bonuses, insurance, and healthcare, for all active duty military service members and military retirees.

What do you need to know?  The following is just a sampling of the provisions in the FY17 NDAA:

Military Pay. For those of you who are still in active duty service, the FY17 NDAA authorized an across-the-board pay raise of 2.1% for service members, effective January 1, 2017. However, you should note that the rate for Basic Allowance for Housing (BAH) is funded and regulated separately, so you should check the BAH for your Military Housing Area to see if any changes were enacted for 2017 that will otherwise impact your overall pay.  You can do this at: https://www.defensetravel.dod.mil/site/bahCalc.cfm.

Also: The NDAA directs the DOD to move to a single pay system no later than January 1, 2018, which represents an attempt to treat BAH as compensation rather than an allowance.

TRICARE Reform. The FY17 NDAA permits DOD to establish TRICARE Select, which will be a self-managed, preferred-provider network to allow freedom of choice for eligible beneficiaries. Additionally, fees will increase for TRICARE Prime retirees and family members through increased annual enrollment fees and additional cost sharing fees (e.g., copays).

Healthcare Reform. The FY17 NDAA provides for expansion in access to urgent care in military and private facilities.  Also, the FY17 NDAA requires Military Treatment Facilities to increase primary care services through expanded hours of operation.

Family Leave. Primary caregivers in the military services will be permitted to take 12 weeks of leave following the birth of a child, including up to six weeks of medical convalescent leave and secondary caregivers in the military services may take up to 21 days of leave.  Additionally, the FY17 NDAA permits primary caregivers in the military to take six weeks of leave following adoption of a child and secondary caregivers will be able to take up to 21 days of leave.

UCMJ Reform. The FY17 NDAA authorizes an overhaul of the UCMJ, including significant procedural reforms at all levels of the litigation process from pretrial through appellate hearings, expansion and/or introduction of defined offenses, and revisions to punitive measures.  The goal of procedural changes is to improve transparency in the system.

Recruiting and Retention Incentives. The FY17 NDAA includes new or revised recruiting and retention incentives for certain critical positions in the military.

Civilian Pay. President Obama extended the 2.1% pay raise for military service members discussed above to all civilian employees in the federal government (not only those in the DOD).  Additionally, the Office of Personnel Management adjusted the Cost of Living Adjustment (COLA) for various localities in 2017.  General Schedule (GS) pay tables can be accessed at: https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/2017/general-schedule/. Note that these pay tables reflect adjusted COLA, but do not reflect the 2.1% pay raise.

Administrative Leave Restrictions. The FY17 NDAA restricts the amount of time all civilian personnel (not only those in the DOD) may be placed on paid administrative leave.

Sources:

Staff Sgt. Jannelle McRae, Fiscal Year 2017 National Defense Authorization Act Impacts on Airmen (Dec. 28, 2016), available at https://www.militaryspot.com/news/fiscal-year-2017-national-defense-authorization-act-impact-airmen.

Statement by the President on Signing the National Defense Authorization Act for Fiscal Year 2017 (Dec. 25, 2016), available at https://www.whitehouse.gov/the-press-office/2016/12/23/statement-president-signing-national-defense-authorization-act-fiscal (noting the President’s concern with revisions to the Administrative Leave Act).

Letter from the President, Alternative Plan for Locality Pay (Dec. 8, 2016), available at https://www.whitehouse.gov/the-press-office/2016/12/08/letter-president-alternative-plan-locality-pay.

Leo Shane III, Obama signs defense bill that authorizes pay raise, more troops, MilitaryTimes (Dec. 23, 2016), available at https://www.militarytimes.com/articles/ndaa-17-obama-signs.

Committee on Armed Services, NDAA, H.R., https://armedservices.house.gov/hearings-and-legislation/ndaa-national-defense-authorization-act

Conference Report to Accompany S. 2943, National Defense Authorization Act for Fiscal Year 2017, H.R. Rep. 114-840 (Nov. 30, 2016), https://www.gpo.gov/fdsys/pkg/CRPT-114hrpt840/pdf/CRPT-114hrpt840.pdf.