Physical Disability Evaluation Hearings & The Legal Rights of Military Service Members
If a service member has been referred for a determination of their fitness for duty, a key step in the process involves the assessment by the Physical Evaluation Board. There is an informal Physical Evaluation Board and a formal Physical Evaluation Board, each of which consists of three members. These are a senior officer, a line officer, and a physician. The same people serve on the informal and formal Boards in the Army, while the informal and formal Boards in the Navy and the Air Force have different members.
The informal Board will evaluate the records of a service member if the Medical Evaluation Board decides that they may be unfit for duty. At this stage, the service member does not have a right to provide any evidence other than their existing records. The informal Board will make a decision on the service member’s fitness, possibly after requesting further records or testing. If the service member disagrees with the decision, they can request a hearing before the formal Board. They might argue that they are still fit for duty or that their disability should receive a higher rating.
Hearings Before the Physical Evaluation Board
Requesting a hearing allows a service member to provide a statement explaining why they disagree with the decision. At the hearing, they can submit new evidence, present witness testimony, and make arguments against the decision. Sometimes providing new medical evidence in advance of the hearing will lead the Board to change its decision without even going through the hearing.
A service member has a right to representation by a military lawyer at no charge, or they can hire a private lawyer or a veterans service officer for a fee if they prefer. The service member does not need to appear at the hearing, nor do they need to testify. However, both appearing and testifying are generally important in persuading the Board to reverse the decision. Otherwise, the Board will rely heavily on the same evidence that the informal Board used in reaching its decision. You should act calmly and professionally if you appear at the hearing. If you do not understand a question that a Board member asks, you should feel free to ask for a clarification. You should answer questions truthfully. However, if you are asked about your plans after leaving the service, you should try to avoid discussing any plans that are inconsistent with your alleged disability or that will make the Board question your motives for separation, to the extent possible.
The hearing will cover subjects such as the nature and extent of your disability, your military career, the impact of your disability on your career, and the treatment that you have received for it. If an attorney represents you, they may make an opening statement about your position and the evidence supporting it. Your attorney then will present the evidence and testimony. After you have answered questions from your attorney and the Board members, your attorney and you both can make closing statements. During this statement, you might politely call the Board’s attention to mistakes of fact or law made by the informal Board that form the basis for seeking a reversal. You should thank the Board for hearing your case. It will not make a decision on the spot but will notify you later instead.
