Appeals of Unfitness Findings by Military Service Members
A service member often will request a hearing before the formal Physical Evaluation Board if they disagree with the initial decision on their fitness and disability. If they do not receive the desired outcome after the hearing, they still may be able to appeal the decision before it receives final approval by the Secretary of their branch of the armed forces. The type of appeal will depend on the basis for disagreeing with the decision by the Board. For any type of appeal, though, the service member will need to provide the written records from the Board.
A service member who disagrees with the disability rating assigned by the Board can appeal that decision to the Physical Disability Board of Review. This Board will alter the rating as needed to make it consistent with the VA system for rating disabilities. Meanwhile, a service member who disagrees with the overall decision on whether they are unfit can submit new statements and evidence to the Secretary before they approve the decision. If the Secretary does not find in their favor, they might eventually appeal to the Board of Correction for Military Records.
Appeals to the Secretary and the Board of Correction for Military Records
You can ask the Secretary to reconsider the decision by the Board by providing a new personal statement, showing that the Board made a legal error, or submitting new evidence. The last of these grounds is the strongest basis for an appeal in most cases, especially if the service member has received new types of treatment for their condition or has undergone further testing. However, you also may want to appeal the decision if the Board failed to legally justify its conclusions. Even though the Secretary might not reverse the decision on this basis, raising legal errors can preserve them for later stages of appeal. A personal statement usually will not succeed in reversing the decision, but it can help the Board adjust its procedures if you identify certain problems.
Unfortunately, the Secretary usually does not reverse decisions by the Board. They generally will approve the Board’s decision, at which point it becomes final. The service member then can pursue the next stage of appeal. This involves filing an appeal with the Board of Correction for Military Records. The BCMR can change a service member’s military records if it finds that it is in the interests of justice. In other words, you would need to show that the entry in your record was unjust or inaccurate. You can file DD Form 149 to submit your appeal. BCMR review does not involve a hearing. It can take several months or a year to get a decision.
Appeals to Federal Court
If you receive an adverse decision from the BCMR, you can appeal that decision to the U.S. Court of Federal Claims or possibly federal district court. This process tends to be very complex and technical, so you should consider retaining an attorney. Getting a reversal in the U.S. Court of Federal Claims requires showing that the BCMR did not follow the law in making its decision. The decision must have been arbitrary, capricious, or an abuse of discretion. This is a very high bar, which requires proving that the BCMR had no reasonable grounds for reaching the decision that it did, based on the facts of your case.
