Military Disability in a Nutshell

• Author: by Major Chuck R. Pardue
• Pages: 03

Tkis article emmines the %,orkings of the A m y disabzlity system, whwh is representaliae oj all United States military disabzlity systems. Because of abuses, eligibility fo7 mililary disabilily is ?e-slricted by the administmtiue presumption sffitness mle. This rule is owrbroad and parltcularly harsh to those soldiers cho are not elzgible for retiremmt. Military disability, Vetemm' Administra-tmn, and Social Security bmjits fa? disabled soldiers are generous, conjususing, and complacated. To factlitate reuietc and to obtain a de now hearing in the ,federal CmTts, future plaintvfs in disability liligation ma!, yesort to the Fricacy Acl in increaszng numbers.

1. INTRODUCTION

   Disability cases arise from a variety of circumstances, limited only by the diverse maladies that can afflict man. Each year, several thousand service members are separated 01retired from the militam with physical disability.' Only after medical treatment has failed to return an individual to full duty do considerations of a possible disability discharge become apparent 01 appropriate. Many soldiers qualify for military Veteran's Adminitratian (VA) and Social Secun-ty Admmstration benefits. Over the years, Congress enacted various laws that provide generous and comprehensive benefits for

   'Judge Advocate OeneraVe Corpr United Safes Arm) Currently assigned as a Military Judge Schueinfun. Federal Republic af German). 1984 to date Formerl) ariigned as Senior Defense Counsel 26 Infantry Uliision Camp Carey Republic of

   Services Agency, 1980-82, Chief of Legal ASmfanCe. Physical E~aluaflon hard Counsel. Tnal Defense Counsel. Office of the Staff Judge Adrocate, Fort Gordon. Georgia. 1877-80 J U Unireriit) of Tennesaee, 1876 B I

   , Maryvllle College. 1973 Completed Judge ldvocate Officer Baric Course 1977. 3Zd Judge Advocate Officer Graduate Course. 1983 Co-author of A Cnmpendiicm oiP0.i Triol Consrdernrimsfnr Tnai L!efensr Coa?iwi. 14 The Ad\ocare 165 (1882) Member of the bars of the atate8of Tennersee and Kentucky the Lnlled SLates Court of hlllitary Appeals and the Cnrted States Supreme Court This article was based upon a thesis submitted an p ~ r tin1 rathfactmn of the requiremenfr of the 326 Judge Advocate Officer Graduate C0"TX

   Defense ~ppeiiate D~VZSIO~.

   'In fiical ?ear 1981. the Army beparated or retired for disability approxlmarel!4 OOfl actwe dut) ser~icemember, U S Ann) Phbncal Disability Agency Case Summar> FI 83 (1984) [hereinafter cited as USAPDA Care Summary]

   KOW 1982.83 ~ppeiiatêttomey,

   U.S ~ r m ) ~egai

   MILITARY LAW REVIEW [Vol. 109 ve~erans.' At times these benefits have 1og1call) complemented each other and created a fair and generous $)%em of disabilit! cimipensation Occaaonally, however. the various sywmi ?%ahliihd 10 provide benefits may prove confusing and arbitran Sometimei. individuals hate received far more money from the disahiht) s)\temi than they earned when the) marked Howeter. over the past ten years Congress took steps. mainly by reducing tax exemptioni. to limit disability compensation

   This article will examine the various disabilit) system5 [hat appli to service members. An emphasis will be piaced on the Army dli-abilicy system. as set forth in Army Regulation 655-40 This article will also discuss the cornucopia of benefits that accrue to disabled veterans

   11. LEGISLATIVE HISTORY

   Until the Civil War. there \+as no established mili~ar) disabilit,! system 1" the K'nited States The leadership recognized that humanitarian and polmcal considerarms necesiitated a fair statutory method by which LO separate from the scrv~ces those who. because of physical problems. were unfit TO command troops or cap tam shLp5 Congress in 1861 enacted "An Act praiiding for the brt rer Organizatmn of the Ililita~

   Establishmenc "j Sections of that act

   . . That if any commissioned officer . shall have become . incapable of performing the duties of his of fice shall be placed upon the retired list with the pay proper of the higherr rank held by him

   provide.

   [Ajssemhle a board to determine the fact5 as to the nature and occasion ai the disabilit) of wch officer5 as dp-pear disabled to perform such mhtary iervice no of^ ficei . . . shall be retired either partially or wholly from the senice without a fair and full hearing before the board, if upon due summons, he shall demand It

   The recommendations of these early disabiht) hoards required the personal approval of Precident Lincoln.'

   As wa5 common with much of the l?gidation m o h m g tile military. Congress eventually enacted separat? %atUte3 far the Ha and Army The original lan~,like the one above. provided onlv f (officers Later. the coverag? expanded to cover enlicted membeii and reservists." Eventually. that iaw was retroactively interpreted hy the Comptroller General to auard to enlisted membera disability retirpd pay if they had continued to serve with their di\abiiit)- a-warrants or commissioned officeri.ln

   e present statutory scheme was established aa part of the Career

   pensation Act in 1949." It applied to all branches of the seriice. red both active duty and reserve ramponent perbannei. and introdured into law the concept of temporary disability and severance pay. AF the legislative histor) indicates. the legislation was designed to correct prior abuses.

   For a great many years it has been the practice to retirr an officer who is found phywally incapable of military senice, and pay him a compensation equal to 75 pel cent of his bave and longemt) pa> 50 differentiation was made as to the actual degree of the di%bility, so long a* 11 Rab suffl'ient to COnstltUte an LnCapaCLty for amve service Nor did retirement practices extend to the enlisted grades, as a whole. The proposed legislation would relate the amount of compensation to the degree of disability, and which would establish an mcapacit) of 30 percent a* the minimum which would qualify the member for retire-

   ment. A lesser degree of incapacity is compensated h: the granting of lump-sum 'scverence pay" instead of long-term retirement pay. Further the principle for physical diiabiiity is extended to the enliYment grades on the sam~ relative basis as 15 applied to the commiisioned grades."

   The Department of Defense (DOD) implemented the disabilit) por tions of the Act by DOD Directive 1332 18 That directive ga\? broad direction to the separate military iervices 10 write regulations in accord oith the congressional mandate." Oler the gears. there have been onlg two significant changes to the mhtar! disability systrm instigated by congreisional interest These are the presumption of fitness rule1* and the broadening of coverage for rhose injured in The line ui duty ah" have leis than eight years of active berv~ce

   111. THE EIGHT YEAR RULE

   The military diabiiity system will provide disahiiit) retirement for ~ruuries or diseair occurring on or off dutl, if the member IS on a c ~ rive duig orders for more than thirty days and has at least a 30 percent disability as defined by the VA Congress had originall) m tmded to limit disability retirement benefits to career soldiers Those individuals not inpired as the proximate rewit of performing duty would not be covered unless they had performed eight years of actlie a err ice if a state of war or national emergency had existed

   those mdwiduals not iflured "a? the proximate result of performing active duty" could receive disability retirement if they had been injured in line of duty "In line of duty" for disability purposes re-quires that the disability not be due to the claimants own misconduct and that the claimant was not absent without leave li

   With the expiration in 1978 of the declaration of Katianal Emw gency, which had been in effect since the Truman Administration, disability retirement coverage for those soldiers with less than eight years active service not injured as a "proximate resuit ai performing

   duty" was eliminated. For several years, there was doubt whether Congress would rectify the pmbiem and continue coverage. For a period of time, the Air Farce opted to deny coverage; however, the Army decided to continue as before.18 Ultimately, this awkward situation was resolved by statutory amendmentslg and a Presidential Executive Order.ao To eliminate the need far a declaration of a war or a national emergency, the law now permits coverage if "the disability was incurred in line of duty after September 14, 1978.''21

4. HOW THE ARMY DISABILITY SYSTEM WORKS

   The Army disability sytem is directed by Army Regulation 638-40 Other relevant Army Regulations include Army Regulations 40-50lB8and 40-3.24 With the Veterans' Schedule for Rating Disabihtm (VASRD),Z5 thwe regulations provide answers to most of the common questions associated with disability processing.

   1. MEDICAL EVALUATION BOARDS

   Although soldiers may be referred for disability processing by any commander or by Headquarters, Department ai the Army (HQDA),Za the mast common means by which disability processing is begun is by the treating physician to refer a member's case to a Medical Evaiuatmn Board (MEBD). The regulation states: "Commanders of MTFs [Major Treatment Facilities] who are treating patients in an assigned, attached, or outpatient status may start action to evaluate a member's physical ability to perform the duties of his office, grade, rank, or rating.''2i

   I)iiahilif? procrswq normally begins when the physician deter miiies that. du\pite medical mtervention. the soldier'i phbsical or

   refrrial to the Ph3sical Evaluation Board (PEE). In mo\l 1mtance5. the member does not appear before the medical board and iids no light to do 50 Howe\~r.a dissatiified memher mal rebut the find 1ng5 of th? board and request reconsideration If the YEBD agrees nilti the member. changes may be incorporated in an addendum tc the rmginal hoard'' findings

   Soldier3 and physmaw ihould mure that a complete and accurst? description of all relevant physical and mental mpairments are m the narrative summary of the MEBD. A common problem...