EXPLORING THE LEGAL NUANCES OF DISABILITY SEPARATION VERSUS ADMINISTRATIVE DISCHARGE FOR MENTAL CONDITIONS IN THE MILITARY.

• Author: Horton, Noel E.

1. INTRODUCTION II. MEDICAL SEPARATION OR RETIREMENT FOR MENTAL ILLNESS CONSTITUTING DISABILITY A. Basis for Disability Separation B. Process for Disability Separation C. Potential Benefits Associated with Disability Separation III. ADMINISTRATIVE DISCHARGE FOR MENTAL DISORDER NOT CONSTITUTING PHYSICAL DISABILITY A. Basis for Administrative Discharge B. Process for Administrative Separation C. Potential Benefits Associated with Administrative Discharge IV. DATA AND STATISTICS V. ISSUES AND CHALLENGES PRESENTED BY SEPARATION FOR MENTAL CONDITIONS VI. RECOMMENDATIONS VII. CONCLUSION I. INTRODUCTION

   One day during a meeting with the installation staff judge advocate, a commander expresses concern about one of her troops. Recently referred to mental health, the member is being considered for disability evaluation. The member is having problems in the unit, frequently engaging in disruptive conduct. The commander is considering discharge action and wants to know what options are available. Meanwhile, at a different military installation, an enlisted service member arrives for a scheduled appointment with military defense counsel. The member tells the attorney he has been diagnosed with a personality disorder and served with notification that he is being considered for administrative discharge. The member insists his problems in the unit began a few months after returning from a deployment to Afghanistan. The member wants to know his legal rights and whether he would be entitled to any medical benefits if he is separated.

   These situations are not uncommon in the military. Many mental disorders begin to manifest themselves in early adulthood, (1) the time when many choose to begin military careers. Additionally, the link between military service and mental disorders, such as Post Traumatic Stress Disorder (PTSD), is generally known and fairly well documented. (2) These realities, coupled with the public and political scrutiny surrounding mental health issues in the military, (3) make it vitally important for judge advocates to understand the applicable legal authorities and requirements. Situations involving military separation based on mental conditions present challenges for military legal practitioners, as the processes established by the Department of Defense (DoD) for dealing with members with mental conditions can be confusing and difficult to navigate. The scenarios above illustrate this point; although both involve military members apparently suffering from mental conditions, the former member may qualify for disability evaluation and the latter member likely does not. Based on this fundamental distinction, the two individuals can expect to receive vastly different levels of due process prior to separation from the service and will very likely be eligible for distinct post-separation benefits. This article describes these two major processes for separating members based on mental conditions--separation due to disability and administrative separation--and highlights legal issues surrounding both processes.

   Part II of this article provides an overview of the medical disability evaluation and separation process for military members. Part III discusses the distinct administrative discharge process faced by members who are afflicted with a mental condition not constituting disability. Part IV explores some of the relevant data and statistics associated with both processes and mental conditions generally in the military service. Part V highlights some of the significant issues presented by the disability evaluation and administrative discharge processes as well as some of the obstacles faced by legal practitioners attempting to advise clients undergoing these processes. Finally, Part VI recommends potential solutions to address some of the issues and challenges at play in this area.

2. MEDICAL SEPARATION OR RETIREMENT FOR MENTAL ILLNESS CONSTITUTING DISABILITY

   Military members with a mental disorder that qualifies for disability are evaluated under the DoD's centralized disability evaluation program. (4) Based on the results of the evaluation and the characteristics of the service member, he or she ultimately may be medically separated or retired. The final results will also determine which, if any, benefits the member will be eligible to receive.

   1. Basis for Disability Separation

      The Veterans Affairs Schedule for Rating Disabilities (VASRD) lists defects and conditions that constitute disability. (5) This schedule includes certain mental disorders (6) and neurocognitive disorders. (7) A service member diagnosed with one of these conditions may be medically separated or retired provided the condition makes the individual unfit for service. (8)

      A service member will be considered "unfit" when the evidence sufficiently establishes that the member, due to disability, is unable to reasonably perform duties of his or her office, grade, rank, or rating. (9) A service member may also be considered unfit when: the member's disability represents a decided medical risk to the member's health or to the welfare or safety of other members; or the member's disability imposes unreasonable requirements on the military to maintain or protect the member. (10) Assessments of fitness are heavily fact-driven and require consideration of various factors, including the member's ability to perform common military tasks, performance on physical fitness tests, suitability for deployment, and need for any special qualifications. (11)

      For a member to qualify for compensation based on disability--either in the form of severance or continual retirement benefits--the condition must have been incurred during or aggravated by the member's military service. (12) Each service makes these findings based on the facts and circumstances unique to each case. (13) These determinations can at times be difficult, particularly when the member is in the Guard or Reserves. Additionally, a member will not be entitled to disability benefits if the condition resulted from the member's intentional misconduct or willful neglect, or was incurred during a period of unauthorized absence. (14)

   2. Process for Disability Separation

      The Disability Evaluation System (DES) is the DoD's mechanism for determining whether a service member should be returned to duty, separated, or retired because of disability. (15) A military member must be eligible for DES referral. Active-duty members and members of a reserve component whose condition was incurred or aggravated during active service are generally eligible for referral, (16) unless: (1) the member has a condition not constituting physical disability; (17) (2) the member is pending an approved punitive discharge or dismissal; (3) the member is pending administrative separation for a basis authorizing an under other than honorable conditions (UOTHC) service characterization, regardless of the member's actual approved service characterization; (18) (4) the member is not physically present and accounted for; or (5) the member's disability resulted from the member's intentional misconduct or willful neglect, or was incurred during a period of unauthorized absence or excess leave. (19)

      If required by the circumstances, the military service may also make a line of duty (LOD) determination to confirm the member's eligibility for disability, (20) including whether a condition is pre-existing, whether a condition is aggravated by military service, and any indications of misconduct or negligence. (21) LOD determinations are separate from the DES process and are made in accordance with the regulations of the service concerned. (22) Service members on continuous orders to active duty for more than thirty days are presumed to have entered their current period of military service in sound condition when the disability was not noted at the time the member entered active duty. (23) Further, service members on active duty for thirty days or more are presumed to have incurred diseases or injuries in the LOD unless the disease or injury was noted at time of entry into service. (24) Both presumptions may be overcome by clear and unmistakable evidence to the contrary. (25) Neither presumption applies to reserve service members serving on active-duty orders of thirty days or less. (26)

      Eligible service members will proceed through one of three DES processes: (27) the Legacy Disability Evaluation System (LDES), (28) the Integrated Disability Evaluation System (IDES), (29) or the Expedited Disability Evaluation System (EDES). (30) Regardless of which specific process is used, the DES consists of two significant components. The first is medical evaluation, which includes a medical evaluation board (MEB). The second is disability evaluation, which includes a physical evaluation board (PEB) and appellate review. (31) Although the medical examinations are performed by the Department of Veterans Affairs (VA), (32) each military service provides oversight of both the MEB and PEB components. (33)

      The purpose of the evaluation component is to confirm whether the service member has a medical condition that may render the member unfit for service. (34) The MEB is the DES's primary means of achieving this aim. The MEB for any given case is comprised of two or more physicians, who may be civilian or military. (35) One of these physicians must have detailed knowledge of the standards pertaining to medical fitness, patient disposition, and disability separation processing. (36) Additionally, any MEB listing a behavioral health diagnosis must contain a thorough behavioral health evaluation and be endorsed by a psychiatrist or a doctorate-level psychologist. (37)

      Ultimately, an MEB documents the medical status and duty limitations of service members who meet the DoD's disability referral criteria. (38) A service member undergoing an MEB may request assignment of an impartial and independent physician or health care professional to review and counsel...