Advisory Opinions in Board of Corrections Cases
First of all, these cases are taking two years to get decisions and longer. Congress needs to do something because petitioners are often suffering and denied their rightful benefits, particularly Reserve and National Guard members.
Secondly, that means an experienced lawyer is your best chance to get a meaningful and successful result and to get the right evidence, which often means an expert opinion, in front of Board members. The Petitioner must present all relevant evidence from military, VA and private providers.
Active duty members get a “head to toe” physical exam before discharge and should have more access to health professionals. All too often, though, either by neglect or intention, injuries are overlooked for Title 10 personnel also. When Active duty have have full-time supervisors, NCOs and Officers who should be caring for their personnel, the lack of MEBs, PEBs and IDES in appropriate cases is unacceptable.
In disability matters, if the Board of Corrections obtains a medical advisory opinion, you will receive a copy of it and the opportunity to respond. If it is unfavorable, you need an expert opinion to refute the Government’s advisory opinion.
Here are the standards:
- Army Regulation (AR)40-501 (Standards of Fitness) governs medical fitness standards for retention and separation, including retirement. Chapter 3 of the regulation gives the various medical conditions and physical defects which may render a Soldier unfit for further military service2. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation)sets for the policies for the disposition of Soldiers found unfit because of physical disability reasonably to perform the duties of his/her office, grade, rank, or rating. The regulation states a: The disability evaluation system assessment process involves two distinct stages: the MEB and the PEB. The purpose of the MEB is to determine whether the service member’s injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty. A designation of “unfit for duty” is required before an individual can be separated from the military because of an injury or medical condition.
