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What you need to know!

Posted by Jason Perry | Dec 02, 2023 | 0 Comments

The Truth about Military Disability

After working almost exclusively in the field of military disability for the past 17 years, I have a very disturbing conclusion to share with you. The results of the disability evaluation system are often erroneous and, to use a legal term of art, "arbitrary and capricious." Essentially, the decisions of the military in disability cases are often disconnected from the facts of the case, and they often use faulty reasoning to make decisions. 

Early in my career, I was the Chief, Soldiers' Counsel at the Army's Texas Physical Evaluation Board. During a stretch of several months, I was "chief" of a one-attorney office- I was the only attorney assigned to this new office! Later, they assigned several more attorneys, and the office grew to 4 attorneys, including dual-assigned lawyers who also worked in other offices like Legal Assistance. When I was the sole attorney, I represented all of the Soldiers appearing at Formal PEB hearings. During this busy time, I would do up to 5 hearings a day, capped at 15 hearings a week. This meant that I had an overview of every case being processed, and I noticed something disturbing. One week, I would have a case with a certain set of facts, like an E5 infantryman with a back and knee disability that the board found to only be unfitting for the back, for example. The Soldier would have a P2 profile for the knee, and his commander would verify that the knee prevented the Soldier from ruck marching and reacting to indirect fire. Based on these facts, the board would return an unfit finding only for the back, despite testimony from the Soldier and medical opinions stating that the knee was unstable but with a good prognosis. Then, a few days or a week later, I would get a case file with an almost identical set of facts, and the board would return an unfit finding for both the back and the knee! In reviewing the written decisions of the boards and comparing them, they would cite the same facts but come up with opposite conclusions. For example, one would state, "The Soldier has a P2 profile, and despite the commander's statement that the knee disability prevents ruck marching and reacting to indirect fire, the condition appears to not be a significant issue with no prescribed pain medication and a good prognosis noted by the orthopedist. This condition is not unfitting." The other decision would state, "The Soldier has a P2 profile, and the commander's statement demonstrates that the knee disability prevents ruck marching and reacting to indirect fire, and the orthopedist opines that the knee is unstable. The board finds this condition to be unfitting."

The first few times this happened, I chalked it up to natural (but still disturbing) variation in results. It is the nature of any legal process that there will be "wrong decisions," and that is why we have appeals processes. But, any rational system will have the vast majority of cases with similar facts result in similar outcomes. After a few months, though, I realized that the results were often inconsistent with the facts between cases. I knew that the process was broken!

Why is this important to know? It makes you realize that if you do not take the steps needed to prepare your case for success, you are essentially gambling that the board rules in your favor based on whim, chance, or whether they feel like it. That is no way to approach a case. 

I advocate and use a multi-step process with my clients. 

First, you need to assess what the case documents and medical evidence currently documents and understand what the likely present outcome is going to be if you do nothing. Next, you need to see if there is other evidence that you can gather, either from medical providers, supervisors (including your commander), or other sources. Then you go out and seek this evidence so that you can show the board that what you are claiming is true and in doing so greatly increase your chances of success. The final part is using the evidence to craft legal arguments to persuade the military that your position is the correct one based on the presumptions and legal standards for decision-making and showing them that if they get it wrong, their superiors or, in many cases, judges in the Federal Courts will overturn their erroneous decision. 

Simply put, hope is not a plan, and if you do not accurately assess your case, seek evidence to shore up any weaknesses, and fail to present the arguments needed to win, you may lose the hard-earned compensation that your service deserves. Don't passively go through the military disability evaluation system hoping for a good outcome and a secure future. Do what it takes to control the outcome and set up yourself and your family for success.

I hope this was informative and that you do what is needed to succeed! You deserve nothing less. 

About the Author

Jason Perry

I am a former active duty Judge Advocate who served as a Soldiers' Counsel at the Texas Physical Evaluation Board. In that position, I represented more than 200 Soldiers at formal hearings with impressive results. In addition to representing Soldiers, I was responsible for training new attorneys ...


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