If you are a member of the Reserve Component (RC), you are particularly vulnerable to arbitrary and inconsistent government processes in which you have little recourse or control. The Veteran’s Advocate works every day to address these many concerns on behalf of our clients. Have you experienced one or more of these issues in your case?
The following is provided to highlight our observations and concerns facing Reserve Component members with respect to injuries incurred in the line of duty. Gross injustices and repeated denials of due process result in our Wounded Warriors being abandoned and left to fend for themselves in a complex legal process that has little consistency, formality, or accountability.
In their most vulnerable state, these Wounded Warriors are not only injured, ill, debilitated, and disabled, but they often lose one or more sources of income, lose one or more long-term retirement benefits, endure stress and anxiety compounding upon stress and anxiety and in some cases physical injury, lose their military identity and military family, are forced to spend significant financial resources to procure competent counsel in this complex area of the law, are blamed for their unit’s and their Department’s administrative short-comings, and all the while are subject to the too-often arbitrary actions of the Service Departments, with little or no recourse available.
This summarized list of issues memorializes our primary concerns—concerns which we seek to remedy every day in representation of our clients:
The “Wild West” Appeals Process
Notwithstanding the 2022 NDAA, Section 524, that required the Secretary of Defense to "incorporate a formal appeals process" to establish the processing of appeals of an FPEB decision within 90 days of the NDAA being signed into law (March 27, 2023)—the DoD and individual military Departments have not substantially complied. To date, there are no officially published (accessible to the general public on an open source) manuals, rules of procedure, scripts, checklists, operating instructions, or regulations by which military members may hold government actors accountable throughout the entirety of their Service Department medical/disability evaluation process. The Air Force and Navy have both started conducting FPEB appeals--with significantly different requirements that aren't published anywhere; however, the Army to our knowledge has yet to start conducting FPEB appeals.
“Reversing” Prior ILOD Findings with a Mere Stroke of the Pen
Even when RC members have their injuries formally determined as incurred In the Line of Duty (ILOD), these prior ILOD findings are often “reversed” through mere administrative action (e.g. a single-page memo that does not cite to authority, medical evidence, or scholarly literature) by the highest authorities. This broad-stroke administrative action often results in removing the member from the IDES process and forcing the “fitness” evaluation to proceed in the Non-Duty Related Disability Evaluation System. When members attempt to appeal these ILOD “reversals,” they are told their only appeal right is to the Board for Correction of Military Records (BCMR). A similar injustice occurs when an adverse LOD finding is premised on ignoring established medical standards or failing to apply required legal presumptions in favor of the member. A typical BCMR petition takes 18-24 months to resolve and the Departments will not pause disability evaluation processing to wait for BCMR results.
The Missing LOD
When an RC member’s unit fails to comply with statutory and regulatory requirements as to processing LOD determinations, (i.e., substantially fails to process, or timely process, the LOD determination), the RC member has essentially no recourse or appeal right, nor is a petition to the BCMR available considering a lack of action, or non-existent record, is generally not appealable. Worse, the member is often blamed for “not requesting an LOD,” or some similarly improper and illegal burden shift. Military members during the last decade have filed complaints with their respective IG, but the IG almost always considers the complaint an “assistance” case and simply sends the matter back to the very unit and personnel that have abrogated their duties.
One Party Has ALL the Information
Throughout the processing of these cases, from the home unit’s initial assessment of the injury/illness through final action by the ultimate appellate authority, the RC member’s absolute right to all information, records, evidence, notes, and documents in the case file is rarely recognized, let alone formalized. On the contrary, in most RC cases it is often in the final stage of the case that critical information or documents (or the lack of) are revealed to the Member, notwithstanding continuous requests throughout the process to be provided such. In doing this, we believe the Service Departments are violating basic constitutionally guaranteed due process rights, considering there is no formalized process provided or right recognized to access all information in the Member’s own case file. Recent case law out of the Court of Appeals for the Federal Circuit found that a service member has a property interest in disability benefits under 10 USC 1201 (the DES), as long as they meet eligibility criteria. A property interest guarantees Due Process Clause protections under the Fifth Amendment of the U.S. Constitution. We believe this Due Process right attaches to the LOD process and, as such, requires the government to provide the service member with everything being considered and used against them. The Departments’ response to a Member’s requests for information is often, “File a request under the Freedom of Information Act (FOIA).” It seems the government willfully ignores that a FOIA request takes 12-24 months for a response, if a response is provided, while the member is held to deadlines of typically three 3 to 45 days, depending on the stage of an appeal. Clearly, a Member’s ability to respond within mere days is infringed when critical information can only be obtained through an administrative process (i.e. FOIA) that is measured in years.
No Recourse and No Oversight
We consistently advocate for our Wounded Warriors, doing our best to navigate the issues highlighted above, as well as myriad other administrative and legal obstacles. Even when we know we have factual, statutory, and regulatory authority to support our position, the current state of the administrative process allows for arbitrary, unsubstantiated, and inconsistent government actions from the Service Departments. Typical avenues for relief have proven mostly ineffective. Complaints to the IG are almost always returned to the very unit or agency complained of, if the IG complaint is processed at all or if the Member’s complaint is even acknowledged. Members consider the IG a “black hole” from which no information or action is ever returned. Petitions to the BCMR take on average 18 – 24 months for resolution, during which time administrative processing of these cases is not put on hold. By the time the BCMR assesses the case, the damage is done—with injuries compounding upon injuries and injustices compounding upon injustices. Congressional complaints are equally ineffective. A typical “Congressional,” much like an IG complaint, is received at the higher headquarters, routed through and responded to by the very unit or agency complained of, and returned to a Congressional liaison who has neither the time nor expertise to objectively assess or respond to the government response.
