Army Times Article on Guard and Reserve Members Being Denied Disability Benefits

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Below is the Article from this week's Army Times on the issue of guard and Reserve Members being denied access to the Disability Evaluation System. My comments are in red italics. The Bottom line is that anyone on active duty order for more than 30 days is treated the same as any other active duty member in terms of eligibility for DoD disability benefits. However, guard and reserve members are all too often being denied these benefits becuase their units are not following procedures for referring them to the DES when they become sick of injured while on active duty.


Many getting incorrect information about claims
It is not up to the service member to know the eligibility rules and processes for the Disability Evaluation System (DES). This is a command/medical responsibility. Service members do not and cannot apply for processing by the DES nor do they put in claims for DoD disability benefits. Only commanders, doctors or personnel commands can trigger entry into the DES which can lead to disability benefits.

By Kelly Kennedy - kellykennedy@ militarytimes. com
Posted : April 07, 2008
While serving in Iraq, Army Reserve Sgt. Todd Kost, 41, jumped from a 5-ton truck and felt his legs go numb.
“I lost all feeling in my lower extremities,” he said.
He had ruptured a disc. Three months into his tour, he was sent to Madigan Army Medical Center at Fort Lewis, Wash., where he had back surgery, and soon after returned to his Reserve unit in Bismarck, N.D.
There, he was told he no longer met retention standards because of the back injury, but because he hadn’t been in the military for at least 15 years, he was ineligible for military disability retirement.
SGT Kost would not have been eligible for retirement had he in fact had 15 years of service. This is yet another area where guard and reserve units are confused. The 15 year retirement is only available to guard/reserve member who become unfit due to non service connect disabilities. SGT Kost’s back injury was definitely service connected. The law allowing for15 year retirements is 10 USC 12731b below:
12731b. Special rule for members with physical disabilities not incurred in line of duty
(a) In the case of a member of the Selected Reserve of a reserve component who no longer meets the qualifications for membership in the Selected Reserve solely because the member is unfit because of physical disability, the Secretary concerned may, for purposes of section 12731 of this title, determine to treat the member as having met the service requirements of subsection (a)(2) of that section and provide the member with the notification required by subsection (d) of that section if the member has completed at least 15, and less than 20, years of service computed under section 12732 of this title.

(b) Notification under subsection (a) may not be made if—
(1) the disability was the result of the member’s intentional misconduct, willful neglect, or willful failure to comply with standards and qualifications for retention established by the Secretary concerned; or

(2) the disability was incurred during a period of unauthorized absence.

Army officials chaptered him out on an administrative discharge — wrongly. They missed the “unless you’re on active duty” clause.
The reserves administratively discharged him under procedures that are used for individuals who become unfit due to disabilities that did not incur while entitled to basic pay. SGT Kost’s disability was injured in a war zone while on active duty.
“There’s no way I should have come off a spine injury in Iraq and not gone” before a medical evaluation board, Kost said.
That was in 2003, but Kost did not find out about the error until a few months ago, when his wife was on the Internet and found several cases just like his.
And it’s not just the Army Reserve. Across the blogosphere, dozens of current and former reservists are just now finding out they should not have been taken off active-duty status after injuring themselves while on active duty — and should have received benefits for the injuries.
For some reason, that information isn’t making it to all the reserve-component troops. In the Army, active-duty officials say it’s a reserve-component issue; Reserve officials chase it back to the regular Army.
“That’s the bureaucracy of the government,” Kost said. “The left hand doesn’t know what the right hand is doing.”
Randal Noller, a spokesman for the Army National Guard, called the issue a “gray area.”
“If they’re injured on active duty, that’s an active-duty issue,” Noller said. “But once they’re off [active duty], where do they go?”
The rule itself is fairly simple: Troops injured on active duty are eligible for medical benefits for their injuries. If their command determines they are medically unfit for duty because of that injury, they must go to a medical evaluation board.
Commanders/doctors/ personnel commands must refer a member to the DES if they fail to meet retention standards. It is the role of the physical evaluation boards to determine if a member is unfit. If the member is unfit, the PEB determines if and how to compensate the disability. These reserve and guard members are being denied disability benefits by being denied access to system that grants the benefits. 10 USC 1201-1222 codifies the requirements.
Retired Army Lt. Col. Mike Parker, who closely monitors the disability retirement system and has offered free help to many troops with claims, explained it further: A person with a pre-existing injury may be shipped home from active status within 25 days of deploying. But that does not include anyone who gets sick or injured while on active duty.
Kost is re-submitting all his paperwork and requesting a change to his discharge. But he only happened upon the rule by chance — just in time for a second back surgery.
“I’m sure there’s a lot more out there like me,” he said.
Kerry Baker, legislative director for Disabled American Veterans, worries about getting the word to other reservists who have fallen through the cracks.
“I don’t know how you find the people throughout the country,” he said. “I don’t know how you reach out to all of them.”
Part of the problem seems to be ignorance; reserve units deal with medical disability retirement cases so infrequently that they don’t know the rules. But Kost wondered why he left Madigan, one of the Army’s largest active-duty medical facilities, without being sent to a medical board.
“I honestly don’t know what went wrong,” he said.
Former Army Capt. Jason Perry used to work as a military attorney within the disability retirement system and is now a civilian lawyer specializing in that area. He has a Web site for people unsure about the process at http://www.pebforum .com.
There, Perry has worked with several reservists who missed the opportunity to go through the retirement process, or who are receiving bad information.
An Army National Guardsman was told to go directly to the Veterans Affairs Department, as they would take care of his service-connected disabilities.
The VA rated him 60 percent disabled, but he’s still in the Guard, waiting for his physical evaluation board. He was wrongly told he had to be in for at least 15 years to qualify.
“There seems to be a consistent issue with people getting different advice,” Parker said.
In one case, Parker helped California National Guard Sgt. Gordon Holmes, 52, contact the Wounded Soldier and Family Hotline to report a problem.
“It came up dry,” Parker said. “They sent it back to the people who we’re having the problem with in the first place.”
Holmes was supposed to deploy with a unit to Iraq. But four days into training at Camp Shelby, Miss., he realized he could no longer see the target while trying to zero his M4 in 93-degree heat with 90 percent humidity.
His uniform became sweat-soaked. His tongue went numb. A VA doctor ultimately determined Holmes had suffered a heat stroke that caused brain damage that now leaves him with fierce headaches. Rather than processing him for his injury, his unit sent him home and said he was no longer fit for deployment.
“They just take you off orders, send you home and don’t do anything,” he said.
SGT Holmes should have been assessed by medical authorities to determine if he could recover and return to his unit or if he needed to be placed in a medical retention unit for further treatment and potential DES processing. These procedures are clearly laid out in the Army G-1’s Personnel Policy Guidance for Contingency Operations in Support of GWOT. Having a heat injury victim immediate clear the base, taken off active duty orders and flown home alone without any follow-up medical care or support is absolutely the wrong answer.
He has no paperwork stating that it was a line-of-duty injury, so he can’t use Tricare benefits. Since last June, he has tried to get that status, but when he and Parker called the hot line, Holmes said his unit threatened him with nonjudicial punishment for going outside his chain of command.
And the hot line — as well as the Camp Shelby Inspector General’s office — told him to go back to his unit to re-do his paperwork. He’s now working on that — and asking for a transfer to another unit.
This is not an action for SGT Holmes to initiate and complete. His command is responsible for conducting the line of duty investigation as well as referring to him to the DES as he has a condition that fails to meet retention standards per AR 40-501.
In most cases, if a person is injured while still in uniform, they should request a medical evaluation board. But if they have already processed out, their only recourse may be to apply for a correction of military records.
Parker said the military needs to reach out more to the reserve components to make sure they’ve gotten the benefits they deserve.
In the meantime, his advice to reservists injured on active duty is: “Don’t take an administrative discharge.”
It is not like they have a choice. All they can do is fight it and try and educate their chain of command on the proper procedures before it is too late.

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As with previous National Defense Authorization Acts (NDAA), of 2006 and
2007, the 2008 NDAA did not address or correct the following issues--

-375,000 retirees with less than 50% disability denied CRDP
-327,000 retirees age 70 & 30 years still paying SBP premiums
(this provision left to take full effect in 2008)
-188,000 Chapter 61 with less than 20 years denied CRDP
(maybe 1/3 will qualify of CRSC)
- 55,000 widows denied relief from SBP/DIC
(they were allowed $50/month in 2008 phased in to add $10/month
over the next 5 years … the average offset is $800-$900/month)

Visit http://usdr.org
USDR Action Alerts http://capwiz.com/usdr/