Military service is grueling. Multiple deployments, physical training requirements and the demands of serving your country take a toll on the body and mind. Eventually, the wear and tear on your body and mind can call into question your fitness for continued service. In the normal course of things, a sick or injured service member is placed first on light or no duty. If the condition persists, it can lead to formal medical discharge processing through either the MEB and/or the PEB process. If you are going through and MEB or PEB you need the best legal help you can get to determine what you should do.
Making Important Decisions
If you are going through an MEB or PEB you need to make some important decisions. The PEBLO can provide general information for you, and the military has a number of lawyers who represent service members free of charge as they go through the process. In addition, you have the absolute right to hire a civilian attorney of your own choosing.
The first thing you will need to decide is whether you have the ability to continue to serve or not, or whether you want to fight to stay in the service despite the injury or illness that is hampering you.
If you decide to fight, this is the beginning of a process involving rebutting the written findings of the board, obtaining a nonmedical assessment from your chain of command that is favorable, and demonstrate that you remain deployable, capable of meeting the physical fitness requirements and standards of your service, capable of performing in your MOS or able to be transferred to another MOS.
This is the level where the assistance of a skilled military lawyer can begin to make a difference.
If you decide that you are not physically able to continue on active service, this does not end the decision-making process. The recommendations of the board may fail to reflect that the cause of the disqualifying condition is related to combat, combat-related activities, or service-connected.
The board may under-represent the degree of impairment caused by the condition, which affects whether or not you are medically retired. You could lose out on the accompanying benefits of medical care through the military system, retirement pay and allowances, and the other benefits of retirement from the service, which leads to separation pay and access to medical care through the Veteran’s Administration alone. The board can also temporarily retire you, or permanently retire you.
At this level, the actions of a military attorney can make a dramatic difference in the nature and amount of treatment or compensation you receive from the service because of your condition.
Appealing The Medical Board Results
After the medical board is complete, you can challenge the results. This will give you the right of appearance before the Physical Evaluation Board, which is a “due process” evidentiary hearing that focuses on all of the same issues that were dealt with in the medical board at the local level. You have the representation of an appointed military lawyer and may also retain a civilian-military lawyer. At this level, the development of the prior record is crucial, but you are still permitted to present new evidence concerning your fitness for service, the degree of impairment, and the ultimate finding that will determine whether you are separated or retired, to include and the degree of your disability.
What if I am also pending administrative discharge?
This is one of the most complicated areas of the law, and you need an experienced military attorney to assist you. If the command is moving to administratively separate you and you are also going through the PEB process, the regulations can be conflicting and confusing. Each service has its own rules and regulations, and you need an experienced MEB/PEB attorney on your side.
- CDR HM