Jason,
...It sounds like these States are discharging these Soldiers under NDRFD without giving them the other 2 options (NDRPEB or transfer to IRR). I seriously doubt that there is a case manager pulling thier records and reviewing the Soldier's history to determine whether or not an NDR is the right CoA. Pursuant with PEB Policy Guidance Memorandum #4 (encl), the RC is responsible for deciding whether the case should be sent up as LOD or NDR.
SGT P,
This is not what is going on (at least in the cases I am talking about). I have dealt with NDR cases, and even the ones that have gone through the ostensibly correct procedure, errors were common.
What I am seeing is two common illegal procedures to separate injured/disabled Soldiers (this is an Army Reserve/National Guard problem....Air Reserve Component Airmen have their own different set of "challenges").
1) Soldier fails retention standards. The Command/State Surgeon's office may or may not initiate a Physical Profile. The State Surgeon then sends Soldier a letter telling them that they fail retention standards and that they are being separated. Very often, though there is documentation showing the injury was incurred in the LOD, there is no LOD investigation. Sometimes they offer the NDR board. In the letter it tells them to apply at the Dept. of Veterans Affairs.
2) Soldier has a profile that states he needs an MEB. The State then send them to an MMRB, which finds them unfit (which is neither a permissible nor authorized finding). Soldier is then separated.
A common thread I am seeing is that the units are not conducting LOD investigations, but processing Soldiers for separation on the basis of the member not having an LOD. This is even if the Soldier has more than 8 years of active service and the injury was incurred while deployed or on orders for more than 30 days.
BTW, this is not just an issue with units at the Company level. I have engaged directly with State Adjutants General (2 star Commanders of State NG), State Surgeons (O6 Physicians), and National Guard Bureau Inspectors General. There is a shocking lack of knowledge and almost uniformly, initially they state that they are doing the right thing. I have so far had success after submitting legal arguments getting individual cases rectified. But, this steams me to no end. I know that there are still current cases being improperly processed and I suspect that there are thousands if not tens of thousands of members out there who have been denied access to the physical disability evaluation system.
The fact that the Soldier was not counseled about their rights is a huge issue here. Both AR 635-200 and the DoDI are explicit in the requirement of properly counseling the Soldier on his rights in each phase of the process.
That is correct. This is not an option, it is required by Title 10 Chapter 61, and the regulations.
All of this is past-tense for OIF, however. So, in cases like this, what is the next step? Should he contact someone from Soldier's Counsel? Or is he no longer entitled to their help?
Post separation, he is not entitled to assistance of a JAG.
Even if he were, I have my concerns about using the JAG's. I say this as a former Soldiers' Counsel. There are some very good and competent attorneys. However, there is also a wide variability in the experience that these JAGs have. The training is very limited, too. I have seen very good ones, but a great many are new to this area of law. This is something that I have advocated they change. The JAG Corps should create a department at the JAG School to teach this area of law, they should create a Disability Law Chief (O5 position with a GS 13-14 assistant), and create at least one 04 and three O3 positions on a Soldiers Counsel Assistance Program). This would create experience, continuity, and institutional knowledge in this area of law. I can tell you that there is not much attention paid to this by the JAG Corps, in my opinion.
He most likely needs to file a DD 149, Application for Correction of Military Records. I have it posted on this site (let me know if you can't find it). He may want to consult an attorney.
