Which board for personality disorder to ptsd medical retirement?
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Jason Perry
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The BCMR. When was your discharge?
Yep, BCMR, as Jason said.
I do believe to be eligible for review under 1554 you had to have been considered by an MEB/PEB.
Jason Perry
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It may be possible to apply there in some cases. However, I think that if you get a bad result, it complicates appeals thereafter. (I also don't favor this board as an option as there are no sitting boards. Basically, if you do go there, it will be someone who does not regularly adjudicate these cases). Finally, under their own regulation 32 C.F.R. § 581.1(a)(2), this board is limited to reserve officers:
"(ii) The class of officers whose cases are reviewable shall include officers of the Army of the United States, other than officers of the Regular Army, who were discharged or released to inactive service under the conditions prescribed in paragraph (a)(1)(i) of this section; and former officers of the Regular Army who were wholly retired under section 1252, Revised Statutes.
It also looks like you would have to have had an MEB/PEB before applying to Disability Review Board:
32 C.F.R. § 581.1
Army Disability Review Board.
(a) General provisions— (1) Constitution, purpose, and jurisdiction of review board. The Army Disability Review Board (called the review board in this section) is an administrative agency created within the Department of the Army under authority of section 302, title I, Act of June 22, 1944 (58 Stat. 284), as amended by section 4, Act of December 28, 1945 (59 Stat. 623), to review, at the request of any officer retired or released from active service, without pay, for physical disability pursuant to the decision of a retiring board or disposition board, the findings and decisions of such board.
I would agree that there is a question as to if a MEB/PEB is required but the best way to nail that issue down is to apply to the disability Review board and see if they allow it. What if the member appealed the admin sep to an admin review board? I also note the CFR is for Army boards and does not address the Navy/USAF disability review board procedures.
I petitioned Congress a couple of years ago and they subsequently modified the law so that enlisted can use this board as well. http://www.pebforum.com/site/thread...disability-and-discharge-review-boards.19280/
It appears the CFR has not been updated to reflect this change.
I have had success using the Disability Review Board last year with an enlisted member. This was a Navy case and the CORB put together a Disability Review Board from existing PEB officials. They voted 4-1 in favor of granting PDRL changing the original PEB decision of EPTS w/o aggravation. Were we able to present the case in person and listed questions to be answered in the findings under 10 USC 1222a. These questions centered on longstanding requirements of law and regulation which the board have found it impossible to dispute. Many of these question went unanswered in their findings but it was moot given the favorable outcome.
Also on the positive side, the board is a review to ensure laws/rules were properly followed whereas the BCMR requires the member to demonstrate the error or injustice. Also the DRB findings can be appealed to the BCMR where as if you go to the BCMR first you cannot subsequently appeal to the Disability Review Board.
Mike
I petitioned Congress a couple of years ago and they subsequently modified the law so that enlisted can use this board as well. http://www.pebforum.com/site/thread...disability-and-discharge-review-boards.19280/
It appears the CFR has not been updated to reflect this change.
I have had success using the Disability Review Board last year with an enlisted member. This was a Navy case and the CORB put together a Disability Review Board from existing PEB officials. They voted 4-1 in favor of granting PDRL changing the original PEB decision of EPTS w/o aggravation. Were we able to present the case in person and listed questions to be answered in the findings under 10 USC 1222a. These questions centered on longstanding requirements of law and regulation which the board have found it impossible to dispute. Many of these question went unanswered in their findings but it was moot given the favorable outcome.
Also on the positive side, the board is a review to ensure laws/rules were properly followed whereas the BCMR requires the member to demonstrate the error or injustice. Also the DRB findings can be appealed to the BCMR where as if you go to the BCMR first you cannot subsequently appeal to the Disability Review Board.
Mike
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I know when I retired from the ABCMR we were sending applicant's letters telling them they had a choice of either going to the Disability Review Board or having us review their case. I don't think they could do both. We did NOT send that letter when the applicant had not been considered by an MEB/PEB.
Jason Perry
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Yes, the CFR cited is just for Army cases. (I did not cite the CFR for other branches, as the original poster said he was Army).
I had thought that there was the ability for enlisted members to use the board- and the statutory language indicates that, too.
Like anything, if something works in a members favor, then it is good and by definition is helpful (at least in that individuals case). However, the lack of case law on these boards, there rarity, the likelihood that the same result could be achieved using different avenues, leads me to believe that it is not a good idea to use them. This is, in large part, because if you lose at these boards, I believe they can hurt your chances on appeal (more so than by using the BCMRs- or appealing directly to the Court of Claims). I have two current cases before Court of Federal Claims where folks have used 10 USC 1553 and 1554 boards (before becoming my client) and in both cases, the use of these boards has unnecessarily complicated the case. The lack of case law and history in addressing issues (including jurisdiction) about these boards makes most issues more difficult to fight out in court. In one of my cases, we have a very strong set of factual findings and favorable legal findings by the court, but, there is a remand order to a 1554 board. Along the way, the fact that this board was used has greatly complicated the case and made it much more difficult. At the moment, there is a further complicated jurisdictional issue with the remand to the 1554 board. I think that the use of the 1554 board was not helpful and, probably hurt the case. In the other case, the use of the 1553 board had triggered issues with jurisdiction and statute of limitations that are not clear in the way BCNR/BCMR are based on case law (and the Navy, in that case has balked about applying the findings of the 1553 board in a later BCNR board). It is certainly only my opinion, but, I think it is a bad idea to use these boards in lieu of a BCMR/BCNR (or, in the right case, by going directly to Court of Claims). This is not to say never, either- there may be cases where there are unique circumstances that make the use of one of these boards desirable; can't think of what they might be, but, there is the possibility.
I had thought that there was the ability for enlisted members to use the board- and the statutory language indicates that, too.
Like anything, if something works in a members favor, then it is good and by definition is helpful (at least in that individuals case). However, the lack of case law on these boards, there rarity, the likelihood that the same result could be achieved using different avenues, leads me to believe that it is not a good idea to use them. This is, in large part, because if you lose at these boards, I believe they can hurt your chances on appeal (more so than by using the BCMRs- or appealing directly to the Court of Claims). I have two current cases before Court of Federal Claims where folks have used 10 USC 1553 and 1554 boards (before becoming my client) and in both cases, the use of these boards has unnecessarily complicated the case. The lack of case law and history in addressing issues (including jurisdiction) about these boards makes most issues more difficult to fight out in court. In one of my cases, we have a very strong set of factual findings and favorable legal findings by the court, but, there is a remand order to a 1554 board. Along the way, the fact that this board was used has greatly complicated the case and made it much more difficult. At the moment, there is a further complicated jurisdictional issue with the remand to the 1554 board. I think that the use of the 1554 board was not helpful and, probably hurt the case. In the other case, the use of the 1553 board had triggered issues with jurisdiction and statute of limitations that are not clear in the way BCNR/BCMR are based on case law (and the Navy, in that case has balked about applying the findings of the 1553 board in a later BCNR board). It is certainly only my opinion, but, I think it is a bad idea to use these boards in lieu of a BCMR/BCNR (or, in the right case, by going directly to Court of Claims). This is not to say never, either- there may be cases where there are unique circumstances that make the use of one of these boards desirable; can't think of what they might be, but, there is the possibility.
About the only time I had problems with Federal court is when I didn't address all the stated issues. That usually occurred when I didn't think it was worth bringing up the stated issue (e.g., the applicant stated that he didn't rape a German national, which led to his BCD, and I didn't address the argument that his platoon sergeant made him do physical exercises not prescribed by regulation). It wasn't relevant to the issue. But I've had cases remanded to me for such issues.
But the other area of concern was being arbitrary and capricious. Its really hard to defend disapproving a case when the ABCMR has just approved six identical cases . . .
But the other area of concern was being arbitrary and capricious. Its really hard to defend disapproving a case when the ABCMR has just approved six identical cases . . .
Certainly the law for the PDBR (10 USC 1554a) states the member cannot go to both the BCMR and the PDBR. However, there is no such provision for the Disability Review Board under 10 USC 1554.
Also the PDBR definitely requires the member to have a PEB determination of 20% or less between 9-11-2001 and 12-31-2009.
As a side note, the USAF resisted doing these boards even after the law was passed expanding the boards to enlisted members. Apparently the DRB law was passed before the USAF was established and the authority to do DRB's was never given to the USAF due to an oversight. As such, the USAF never had a process or regulation/CFR for DRB's. I was told by the USAF they recently received DRB authority (within the last year) but was still working on their DRB regulation/process.
All I can say is I had success with the DRB and that success centered around detailing what rules were not properly followed by the PEB and forcing them to address the issue via 10 USC 1222a. I think I know the 1554 case Jason is referencing as I was the one who took it to the DRB. However, the DRB refused to address the issue raised and it took Jason taking them to federal court to force them to address the issues raised.
Mike
I started talking to Lawyers Serving Warriors in 2016 and an attorney in 2017 took my case. In 2018 my application, brief and support of application to the ABCMR was submitted. Today (12/13/2021) I was contacted by a civilian for USARMY MEDCOM that they were assigned to process my ABCMR MEB evaluation for the Army and will be sending documents for me to go over.
My case has been with the BCMR for 971 days now and I was told it was assigned to an analyst about 2 months ago. How long should this process take? Also was wondering your opinion on whether you think I have a good case or not. I ended up with a pulminary embolism in my lungs in Afghanistan, had a serious back injury and also ended up slicing my wrist. I was placed on a P3 profile and was on blood thinners and pain killers until the day I etsd from the Army. All of this happened in 2010 and I etsd October 2012. I could not wear any of my gear or perform my MOS. I finished out my time by being a mentor at the local elementary school through theirs and Ft. Bliss Partners in Education Program where I earned my MOVSM. I recieverd a Honorable discharge and am requesting a Medical Retirement. I have been rated for the pulminary embolism issues, my back and Ptsd with major depression effective the day I got out of the Army through the VA.
Should I have been medically retired or separated due to all of that and not meeting retention standards? Is it possible to get Retirement for those issues?
It sounds like you have a very strong case that the Army should have medically retired you!
From what I can tell from this site, it depends on how simple or complicated your case may be.
Well I may have complicated it myself.when I first filed. I filed a dd293 to the army Discharge review board April 2019, then October 2020 I recieved an email stating that the BCMR would notify me of their decision once my case is complete. September 2021 was told it was assigned to a analyst. So I really don't know what to think or how complicated I made it for myself or overall.
