Disability and Readiness: The Integrated Disability Evaluation System Needs to Get Healthy.
The Colorado Springs Gazette published the above email from the Chief of Justice (COJ) at 4th Infantry Division (4ID) and Fort Carson, Colorado. (2) The email was sent to the 4ID trial counsel (TCs) in response to a high number of Soldiers committing misconduct who were also enrolled in the medical evaluation board (MEB) phase of the integrated disability evaluation system (IDES). (3) At the time, it took the average Soldier 140 days to be seen at an initial evaluation appointment during the MEB phase of the IDES. (4) Soldiers waiting in the IDES remain on the unit books and occupy slots for their military occupational specialties (MOSs), but the Soldiers are non-deployable. (5) This meant that units were fully manned on paper, but were, in reality, undermanned because of the large numbers of Soldiers unable to work or deploy.
Many 4ID commanders were frustrated that a percentage of their force was not able to perform the deployed mission for which they were preparing and there was little they could do to improve readiness. (6) Commanders also wanted the Soldiers in the IDES to receive all the care and attention they needed to have an accurate and fair disability rating. (7) At the time the email was sent, the units at Fort Carson were deploying on regular twelve month rotations to Iraq and Afghanistan, making readiness a top issue. (8)
Generally, commanders want to fill the unit's authorized MOS billets with deployable Soldiers to accomplish their missions. However, the command's desires for deployability often meant an acceleration of the IDES resulting in an incomplete disability evaluation. (9) Some Soldiers turned to the media to express their frustrations. The Colorado Springs Gazette said the Army was casting aside wounded Soldiers for convenience. (10) Similar articles periodically appear in news outlets across the country. (11)
Commanders are likely to look to brigade judge advocates (BJAs), chiefs of justice (COJs), and TCs to work with the brigade personnel section (S1) and the staff surgeon to find creative ways to reduce non-deployable numbers and increase readiness. (12) Soldiers may be non-deployable for a number of reasons, but commanders are particularly concerned about those Soldiers who are not deployable because of enrollment in the time consuming IDES. (13) The ideal MEB phase takes 100 and the total IDES goal is 295 days. (14) The Army, in fiscal year (FY) 2014, reported that seventeen percent of IDES cases were not meeting that timeline. (15)
The problem is not only the lengthy timeline, but the fact that Soldiers in the IDES are counted when calculating unit and Army end strength. (16) Increasing readiness by reducing the approximately 80,000 medically non-deployable (approximately 12% of total Army end strength) Soldiers is the number one priority for the Army today. (17) Congress should not count Soldiers enrolled in the IDES against authorized end strength, and the Army should require a greater degree of personal accountability for Soldiers enrolled in the IDES. Doing so will free commanders to both prepare for war and care for their wounded Soldiers.
This paper briefly discusses the historical development of the IDES. The paper then defines the readiness problem created by the IDES and discusses some of the ways commanders navigate this problem under the current rules. Finally, the paper proposes corrections to the regulatory and statutory framework to relieve judge advocates and commanders from having to choose between the proper care of Soldiers in the IDES and mission readiness.
A. Advent of the IDES
Prior to the creation of the IDES, the Department of Defense (DOD) and the Department of Veteran's Affairs (VA) managed their medical evaluations for the purposes of disability retirement separately. (18) However, when Congress faced the problem of long waits and substandard care for veterans at Walter Reed Army Medical Center (WRAMC), (19) it saw an opportunity to streamline the disability evaluations of both departments and passed legislation to create the IDES. (20)
The problems at WRAMC that led to the radical changes for disability evaluation were large. The problems included
Soldiers suffering from traumatic brain injuries or stress disorders, others with amputated limbs, hav[ing] [to] languish for weeks and months on end in vermin-infested quarters waiting for a decision on their military status and a ruling on the level of benefits they will receive if they are discharged and transferred to the civilian-run [VA]. (21)
The September 2007 shift to a combined evaluation system for both the DOD and the VA, but run by the DOD, solved those problems. (22) Now, the Soldiers waiting on a disability rating from the VA receive a paycheck, have Army officers to look over them, and have full medical care. (23)
B. Overview of the IDES
There are three main phases to the IDES each with several stages and steps with a total goal timeline of 295 calendar days. (24) After enrollment into the IDES, the Soldier enters the MEB phase, followed by the physical evaluation board (PEB) phase, then the transition phase. (25) Each phase has several stages, and each stage several steps. The IDES phases and their steps are briefly discussed below.
1. The Initial Medical Evaluation
The IDES begins with an initial medical evaluation by a physician, often referred to as phase zero. (26) That exam determines that the Soldier has an ailment or injury that interferes with their ability to perform duties. (27) If a temporary profile (28) remains in place for one year or if the condition of the Soldier makes it clear that he or she is not fit for duty, then the Soldier reaches the medical retention determination point (MRDP). (29) The MRDP is the point at which the Soldier is officially enrolled in IDES. (30)
2. The MEB Phase, 100 Days
After the initial medical evaluation, the Soldier enters the MEB phase of the IDES. (31) The ultimate purpose of the MEB phase is to determine if the Soldier meets medical retention requirements. (32) The MEB process consists of several stages and the processing time goal is 100 days. (33) The stages include the referral stage, the claim development stage, the medical exam stage, and the MEB stage. (34)
In the referral stage, the Soldier receives informational briefs and provides the board with a copy of their medical records. (35) The Soldier's immediate commander is required to assess and document the Soldier's duty limitations from a non-medical perspective and to provide it to the Soldier's physical evaluation board liaison officer (PEBLO). (36) This is also the stage at which a line of duty investigation is completed, if required. (37)
The next stage is claim development. (38) In this stage, the Soldier is counseled on the role of the VA to compensate the Soldier "for chronic illnesses, injuries and diseases that were incurred in or aggravated by service." (39) The Soldier also receives appointments for VA compensation and pension (C&P) medical examinations and given an opportunity to add conditions not included at the MRDP. (40)
The Soldier then enters the VA disability examination stage. (41) This is the longest stage of the MEB phase of the IDES. (42) In this stage the Soldier attends the C&P appointments and the providers complete various administrative and documentation requirements. (43) The exams cover all potential conditions, claimed or otherwise. (44) When Soldiers have conditions that cannot be fully addressed in the C&P exams, the provider provides a notation in their administrative reports and the process continues. (45) Soldier "no-shows" are a common cause of delay in this stage, and, if a Soldier misses an appointment, the Soldier's command is responsible for allocating resources to ensure the Soldier attends all appointments as scheduled. (46)
The final stage in the MEB phase is the MEB stage. (47) This stage takes approximately thirty-five days. (48) The PEBLO forwards the C&P exam results to the MEB provider. (49) Then the MEB provider writes a Narrative Summary (NARSUM) using the C&P exam and the Soldier's entire medical record to describe all of the Soldier's medical conditions. (50) Then an informal MEB, consisting of two credentialed providers and an approval authority, review the NARSUM and the MEB case file to determine if the Soldier meets medical retention standards. (51) If the Soldier meets medical retention standards they are returned to duty. (52) If the Soldier does not meet medical retention standards, the case is forwarded to the PEB phase. (53)
There are several options available to the Soldier prior to entering the PEB phase. (54) The Soldier may request an impartial medical review (IMR) and may also provide a rebuttal to the medical retention determination of the MEB. (55) However, these options are not factored into the projected processing timeline. (56) Also, potential adverse administrative or legal actions often lead to delays in the processing of cases through the MEB phase. (57)
3. The PEB Phase, 120 Days
The purpose of the PEB phase is to determine whether the Soldier is fit for duty, and, if not, their eligibility for benefits. (58) The fit for duty determination is different from the MEB's meets retention standards determination in that the PEB evaluates the impact of the Soldier's medical conditions on their ability to perform their military occupational specialty while the MEB simply determines if the Soldier meets general objective retention standards. (59)
The PEB phase is also comprised of several stages. (60) The first stage is the informal PEB stage. (61) This stage renders the fit or unfit for continued service determination. (62) If the Soldier is found fit for continued military service he or she is returned to duty. (63) If the Soldier is found unfit for continued military service, the PEB sends all conditions rendering the Soldier unfit to the VA's disability rating activity site (DRAS) to obtain a disability rating. (64)
The Soldier is then presented with the findings of the PEB and the DRAS. (65) At this point, the Soldier may non-concur with the fitness determination and request a formal PEB. (66) If the Soldier disagrees with the VA disability rating, the Soldier may present additional medical information and request reconsideration for each unfitting condition. (67) The Soldier is entitled to a formal PEB and, if requested, the IDES enters that stage of the PEB phase. (68)
A formal PEB consists of a panel of medical and non-medical members and the Soldier may appear in person before the formal PEB. (69) The Soldier may also be represented by legal counsel at the formal PEB at government expense. (70) After a finding is made by the formal PEB, they are sent to the United States Army Physical Disability Agency (USAPDA) for review. (71) The USAPDA may return the findings to the formal PEB for reconsideration or approve them. (72) Once the findings are certified by the USAPDA they are forwarded to the PEBLO to inform the Soldier. (73)
4. The Transition Phase, 90 Days
After completion of the PEB phase, the Soldier enters the final phase of the IDES, the transition phase. (74) The purpose of the transition phase is to guide the Soldier through retirement or separation from the Army. (75) This phase is governed mostly by the Soldier's installation transition office and ends when the Soldier is no longer on active duty or has completed their return to duty. (76) With an understanding of the IDES and its lengthy timeline it is now time to outline the readiness problem.
III. What is the Readiness Problem, and How Do Commanders Cope
While the IDES solved serious problems with access to care and eliminated duplicate disability evaluations in the DOD and the VA, the current regulatory makeup of the IDES creates a problem with readiness. This section of the paper discusses the problems with readiness as created by the IDES and then discusses the ways in which commanders are currently dealing with the readiness problems.
A. Defining the Readiness Problem
The Army aims to downsize toward 476,000 active end strength in FY 2017, (77) and the percentage of non-deployable Soldiers continues to grow. (78) For example, from 2007 to 2010 the percentage of Soldiers within brigade combat teams (BCTs) that were non-deployable increased from 11% to 16%. (79) In November of 2015, the active Army had approximately 50,000 Soldiers who could not deploy, 37,000 (7.5% of active Army end strength) of which were due to medical issues. (80) That number is up from 3.4% in FY 2007, 4.6% in FY 2010, and 5.78% in FY 2011. (81)
The ever increasing rate of non-deployable Soldiers, particularly medically non-deployable Soldiers, causes great concern among the Army's leaders. (82) Sergeant Major of the Army (SMA) Dan Dailey made reducing non-deployable Soldiers number one on his list of six priorities for 2016.83 When announcing this priority, SMA Dailey said, "I want every Soldier deployable in the Army. It's about building readiness in the United States Army, doing what's right, taking care of Soldiers and getting them healthy--but cracking down on it, too." 84 Placing the problem in perspective, SMA Dailey said the number of non-deployable Soldiers, 50,000, is roughly equivalent to having three of the Army's ten divisions unavailable for deployment. (85) The bottom line, from a strategic perspective, is medical non-deployable Soldiers reduce the number of Soldiers available to accomplish the Army's overall mission.
However, the problem is more palpable when viewed from an individually deployable unit level. When a Soldier cannot deploy, but remains assigned to a deployable unit, that unit is left with a vacancy when they do deploy. (86) For example, if a battalion has one paralegal, and that paralegal is not deployable but remains assigned to the battalion, then the battalion is forced take a Soldier away from another unit or simply go without. As such, it is understandable that commanders at all levels of the Army are concerned about this issue. A 2011 Army War College study summarized the non-deployable problem well when it concluded,
Army personnel who are non-deployable detract from readiness and encumber their units by failing to perform the required tasks as outlined by regulations, orders, and directives. Unit level commanders are often forced to seek other resources or individuals to fill vacancies left by non-deployable Soldiers, while also expending time and effort to supervise and process non-deployable Soldiers until they become deployable or are separated. At senior Army levels, non-deployable Solders are viewed as a total non-deployable percentage compared to a unit's overall strength. Within a unit, however, the non-deployable percentage is not just an aggregate number but individual Soldiers with particular Military occupational Specialties, who are needed to perform specific roles and tasks for the unit. (87)
Soldiers who are non-deployable for a non-temporary medical reason are likely to become enrolled in the IDES. (88) All Soldiers who are enrolled in the IDES fall into the category of medically non-deployable. (89) Therefore, reducing the 37,000 medically non-deployable Soldiers, and increasing Army readiness, is directly tied to the IDES. (90) However, despite reducing the overall wait times for Soldiers to receive their disability ratings, the IDES has also resulted in Soldiers remaining on active duty, and in their current unit, for far longer than they did under the previously separate DoD and VA disability evaluation systems. (91)
The IDES requirement that Soldiers remain on active duty throughout the entire process (MEB, PEB, and Transition) means commanders are holding onto medically non-deployable Soldiers for a minimum of 295 days. (92) However, significant numbers of the DOD's IDES cases exceed target processing timelines. (93) Congress and the DOD recognize that reducing the processing time of IDES cases will result in increased readiness and are actively engaged in reducing the percentage of cases that exceed the target timeline. (94) Despite their efforts, and major improvements, 13% of FY 2015 DOD IDES cases exceeded timelines. (95)
The readiness problem for commanders is aggravated by the fact that they are responsible for ensuring Soldiers in the IDES process keep to the scheduled timeline and make it to their appointments. (96) Then, when there are delays caused by Soldiers missing appointments or not cooperating with medical professionals during the IDES, commanders are required to allocate resources, such as noncommissioned officer escorts, to ensure the Soldier no longer misses appointments. (97) Utilizing those resources on medically non-deployable Soldiers in the IDES necessarily results in not utilizing those resources to increase readiness or to prepare for an upcoming deployment.
In a similar vein, many commanders, from the division commander down to the company commander, deal with processing a Soldier through the IDES when they are also committing misconduct resulting in a desired or mandatory administrative separation. (98) These cases are commonly referred to as dual-processing, referencing the administrative separation process and the IDES. (99) Army regulations require Soldiers to complete the MEB phase of the IDES prior to a separation authority taking final action on an administrative separation for misconduct. (100) The same 2011 War College study quoted earlier addressed commander's frustrations with this process, "... Soldiers with a history of indiscipline and misconduct are remaining in the Army pending disposition of their [IDES] cases. These [IDES] processing timelines are challenging for commanders who expect to separate Soldiers for misconduct but learn these Soldiers will remain in the Army for up to another year." (101)
B. What are Commanders Doing to Cope?
The readiness problem associated with the IDES is not new. As discussed, the Army's leadership, and the DOD, has continually prioritized reducing non-deployable Soldiers and reducing IDES processing timelines since the IDES was piloted in 2007. (102) As such, commanders have been creative in navigating the readiness problem created by the IDES. (103)
Below are a few of the methods commanders have utilized to reduce the number of medically non-deployable Soldiers in their formations. These methods often result in commanders having to choose readiness over the individual Soldier's needs.
First, commanders have tried to send medically non-deployable Soldiers to warrior transition units (WTUs). 104 This can be effective to remove Soldiers enrolled in the IDES from the books of the deployable unit, however, the WTUs have specific requirements for Soldiers to be assigned to them and they are riddled with issues. (105) The issues include "harassment, mistreatment and a lack of care from their supervisors." (106) The WTUs have a reputation as a dumping ground for problem Soldiers who no longer contribute to the Army. (107) This information indicates that the WTUs are not an effective solution to the readiness problem when commanders also want the best care for their Soldiers in the IDES.
Next, commanders have simply moved non-deployable Soldiers from units preparing to deploy to units that just returned and will not deploy in the near future. (108) This prevents the Soldiers in the IDES from having continuity of command and creates an additional roadblock for PEBLOs who work with the command to quicken the IDES processing timeline. The 4ID attempted this process in 2009 and quickly recognized the issue with continuity. (109)
In an effort to solve the continuity problem, Fort Carson created a provisional holding unit for Soldiers who are not in the WTU but remain non-deployable for medical reasons. (110) Fort Riley created a similar provisional unit to process administrative separations and hold dual processing Soldiers for the duration of the MEB phase to free deployable units from carrying the Soldiers. (111) Strategically, these units deepen the non-deployable population instead of reduce it because they require officers and enlisted members to manage them. (112) When considering Congress's reduction of authorized Army end strength, this solution will not increase long term readiness.
A final example pertains specifically to dual process Soldiers and explains the email quoted at the outset of this paper. When Soldiers in the IDES committed relatively minor misconduct usually disposed of through non-judicial punishment, judge advocates at Fort Carson recommended the command prefer charges and then accept a request for discharge in lieu of court-martial if requested. (113) This is a quick way around the requirement to keep the Soldier through the MEB phase because Army regulations do not prioritize medical processing over discharges in lieu of court-martial. (114)
However, a request for a discharge in lieu of court-martial is voluntary and must come from the accused Soldier. (115) If the Soldier does not submit the request, the preferral of charges pauses the IDES between the MEB and PEB phase. (116) If the Soldier's court-martial ends without a punitive discharge, then the IDES case may proceed to the PEB phase. (117) This practice creates temptation to treat minor misconduct committed by Soldiers enrolled in the IDES differently than minor misconduct committed by Soldiers those who are not enrolled in the IDES. (118) Commanders will receive scrutiny when minor misconduct results in an administrative discharge for Soldiers who are not in the IDES and court-martial charges for those who are. (119) All of these problems put commanders in a tough position when they want to both care for Soldiers and fully prepare for deployment.
IV. Relieving the Pressure
This paper proposes two actions to address the readiness problem of the IDES without forcing commanders to compromise Soldier care for readiness, or vice versa. First, Congress should pass legislation that excludes Soldiers enrolled in the IDES from calculations of total Army end strength. Second, the Army should require Soldiers to be personally accountable for their IDES case, and if they fail to be accountable, the Soldier should no longer be eligible for the IDES. Each proposal is analyzed below.
A. Congress Should Exclude Soldiers Enrolled in the IDES from End Strength
As discussed above, the FY 2017 National Defense Authorization Act (NDAA) set the Army's end strength at 476,000 active duty Soldiers. (120) Soldiers who are enrolled in the IDES are included in that 476,000. (121) The DOD wishes to reduce the number of Soldiers who are returned to duty out of the IDES, making nearly all of the 37,000 medically non-deploy able Soldiers simply waiting to exit the Army. (122) Despite these Soldiers inability to ever fully participate in the mission of the Army, Congress still includes them in the 476,000 authorized for mission accomplishment.
If these Soldiers are removed from end strength calculations, commanders will be able to fully staff their units with Soldiers who are able to deploy and accomplish the Army's primary missions. Additionally, commanders will be free from the constant pressure to reduce non-deployable numbers and will no longer feel compelled to seek solutions that compromise Soldier care.
It appears that Congress did not account for the readiness problems associated with the implementation of the IDES. The combining of the DOD and VA systems and placing the entire disability evaluation process on the DOD created a type of unfunded mandate. This unfunded mandate requires the Army to hold Soldiers on active duty for the entirety of the IDES without an increase in the authorized number of Soldiers. (123) Eliminating those servicemembers who are waiting for a disability rating and separation corrects this issue.
To accomplish this end, Congress only needs to place a qualifier in the next NDAA that excludes Soldiers enrolled in the IDES from the authorized end strength. (124) Then the executive can implement the measure through the service secretaries. The Army is already accounting for Soldiers non-deployable because of permanent medical conditions and the Army G1 can easily exclude them from end strength calculations while still providing accounting information to Congress regarding the number of Soldiers enrolled in the IDES.
The most notable impediment to this change is cost. Removing these Soldiers from authorized end strength essentially results in an increase of the force. However, in doing so, Congress is armed with more information so that they may better assess the actual size of the DOD and set end strength accordingly. Further, the apparent cost of fielding new Soldiers to replace those enrolled in the IDES is inflated. As discussed, the vast majority of Soldiers enrolled in the IDES are simply waiting to exit the Army and it is only a matter of time before they create the vacancy. (125) Excluding these Soldiers from end strength calculations allows the Army to get ahead of those vacancies by filling them now instead of waiting until the IDES Soldiers transition out.
Further, the cost of the additional Soldiers is offset by a requirement for personal accountability in the IDES. Soldiers who miss appointments cost the military health system billions of dollars each year in wasted time. (126) The missed appointments add cost by slowing the IDES. (127) A requirement for personal accountability in the IDES will reduce no shows and the high costs associated with them.
B. The Army Should Require Personal Accountability for Soldiers in the IDES
Through the IDES, the Army intends to compensate Soldiers for injuries and illnesses incurred during service, and the Soldier stands to gain through disability separation pay or retirement. (128) At every other point during service, Soldiers are expected to conduct themselves in accordance with the uniform code of military justice. (129) The Army's current regulatory framework creates a loophole in those obligations for Soldiers in the IDES. (130)
Soldiers who do not participate in the IDES, who are unruly or regularly fail to attend medical appointments, should forfeit their ability to gain from the IDES. That said, Soldiers enrolled in the IDES are due a fair shot to complete the process. Therefore, this paper recommends the Army allow Soldiers who commit misconduct that disrupts their participation in the IDES to be separated without completion of the MEB phase. (131) The separation should account for medical issues by capping the characterization of service at general (under honorable conditions), elevating the separation authority to the general court-martial convening authority, and requiring concurrence of a senior medical provider.
To accomplish this change, the Army must adjust Army Regulation 635-200 and Army Regulation 635-40.132 There should be an exception to the requirement to complete the MEB phase prior to separation for misconduct reflecting the qualifications discussed above. Requiring a reasonable level of personal accountability will reduce costs, increase readiness, and speed the processing of IDES cases.
There is a real problem with readiness when it comes to disability evaluation in the Army. To best address Soldier care and the need to have an Army that is ready to do America's bidding, Congress should not count Soldiers enrolled in the IDES against authorized end strength. The Army should also require Soldiers enrolled in the IDES to be accountable in the process.
Making the recommended statutory and regulatory changes in this paper will result in increased readiness and an improvement in Soldier care throughout the IDES. Commanders will be free to fully care for their wounded Soldiers while maintaining focus on their upcoming missions. Bottom line, the Army will be better prepared.
Appendix A. Changes to Authorized End Strength Calculations
1. The [section] 401 of the NDAA for FY 2017 reads as follows:
The Armed Forces are authorized strengths for active duty personnel as of September 30, 2017, as follows:
(1) The Army, 476,000.
(2) The Navy, 323,900.
(3) The Marine Corps, 185,000.
(4) The Air Force, 321,000. (133)
2. To exclude servicemembers enrolled in IDES, the NDAA should be amended to read:
The Armed Forces are authorized strengths for active duty personnel, excluding personnel enrolled in the Integrated Disability Evaluation System, as of DATE, are as follows:
(1) The Army, NUMBER.
(2) The Navy, NUMBER.
(3) The Marine Corps, NUMBER.
(4) The Air Force, NUMBER.
Appendix B. Regulatory Changes for Personal Accountability
1. Paragraph 1-33 of Army Regulation 635-200 reads as follows:
1-33. Disposition through medical channels
a. Except in separation actions under chapter 10 and as provided in para 1-33b, disposition through medical channels takes precedence over administrative separation processing.
b. When the medical treatment facility (MTF) commander or attending medical officer determines that a Soldier being processed for administrative separation under chapters 7 (see sec IV), or 14, does not meet the medical fitness standards for retention (see AR 40-501, chap 3), he/she will refer the Soldier to a Medical Evaluation Board (MEB) in accordance with AR 40-400. The administrative separation proceedings will continue, but final action by the separation authority will not be taken, pending the results of MEB.
(1) If the MEB findings indicate that referral of the case to a physical evaluation board (PEB) is warranted for disability processing under the provisions of AR 635-40, the MTF commander will furnish copies of the approved MEB proceedings to the Soldier's GCMCA and unit commander. The GCMCA may direct, in writing, that the Soldier be processed through the physical disability system when action under the UCMJ has not been initiated, and one of the following has been determined:
(a) The Soldier's medical condition is the direct or substantial contributing cause of the conduct that led to the recommendation for administrative elimination.
(b) Other circumstances of the individual case warrant disability processing instead of further processing for administrative separation.
(2) The authority of the GCMCA to determine whether a case is to be processed through medical disability channels or under administrative separation provisions will not be delegated.
(3) The GCMCA's signed decision to process a Soldier through the physical disability system will be transmitted to the MTF commander as authority for referral of the case to a PEB.
(a) Copies of the GCMCA's decision will be furnished to the unit commander and included in the administrative separation proceedings.
(b) The unit commander will suspend processing of the administrative separation action pending the PEB.
1. If the Soldier is found physically fit, the administrative separation action will be resumed.
2. If the Soldier is found physically unfit, the administrative separation action will be abated.
c. Disability processing is inappropriate if the conditions in b(1)(a) and (b) do not apply, if UCMJ action has been initiated, or if the Soldier has been medically diagnosed as drug dependent. (See para 14-12c.) Accordingly, disability processing is inappropriate in separation actions under chapter 10. (134)
2. To impose personal responsibility in the IDES, paragraph 1-33a and c should be amended and a new section d should be added,
a. Except in separation actions under chapter 10, as provided in para 1-33b, and in situations where a separation is initiated under chapter 14 and an administrative separation board determines the Soldier has committed misconduct that interferes with the processing of the Integrated Disability Evaluation System, disposition through medical channels takes precedence over administrative separation processing.
c. Disability processing is inappropriate if the conditions in b(1)(a) and (b) do not apply, if UCMJ action has been initiated, if the Soldier commits misconduct that interferes with the processing of IDES, or if the Soldier has been medically diagnosed as drug dependent. (See para 14-12c.) Accordingly, disability processing is inappropriate in separation actions under chapter 10.
d. In cases where the Soldier commits misconduct that interferes with the processing of the IDES the board procedure must be followed, a medical provider in the grade of O-5 or higher must serve as the president of the administrative separation board, the Soldier may not receive an under other than honorable characterization of service, and the separation authority is the GCMCA.
3. Paragraph 4-3f of Army Regulation 635-40 reads as follows,
f. Enlisted Soldiers pending administrative separation.
(1) Enlisted Soldiers who are approved for discharge in lieu of trial by court-martial are ineligible for referral to the MEB and PEB phases of the DES (see AR 635-200). If the Soldier is in the DES process, their DES case will be terminated, and the Soldier is discharged in lieu of trial by court-martial.
(2) Soldiers under processing for an administrative separation for fraudulent enlistment or misconduct remain eligible to be referred to the MEB. The Soldier's commander must notify the Soldier's PEBLO in writing that administrative separation action has been initiated. The Soldier's completed MEB must be referred to the Soldier's General Court-martial Convening Authority (GCMCA) in accordance with AR 635-200 to determine whether the Soldier will be referred to the PEB. Approval and suspension of an AR 635-200 separation action is not authorized when the Soldier is pending both an AR 635-200 and AR 63540 action. The GCMCA must decide which action to pursue (as described in AR 635-200). Soldiers continue to be eligible for these administrative separation actions up until the day of their separation or retirement for disability even though their PEB findings have been previously completed and approved by USAPDA for the SECARMY. In no case will a Soldier, being processed for an administrative separation for fraudulent enlistment or misconduct be discharged through the DES process without the approval of the GCMCA.
(3) For administrative separation actions other than those addressed in paragraphs 4-3f(1) and 4-3f(2), referral and disposition under the DES takes precedence over the administrative separation action.
4. Paragraph 4-3f(2) of Army Regulation 635-40 should be amended to read:
f(2) Except in separation actions under AR 635-200 chapter 10, and in situations where a separation is initiated under chapter 14 and an administrative separation board determines the Soldier has committed misconduct that interferes with the processing of the Integrated Disability Evaluation System (see paragraph 1-33, AR 635-200), Soldiers under processing for an administrative separation for fraudulent enlistment or misconduct remain eligible to be referred to the MEB. The Soldier's commander must notify the Soldier's PEBLO in writing that administrative separation action has been initiated. The Soldier's completed MEB must be referred to the Soldier's General Court-martial Convening Authority (GCMCA) in accordance with AR 635-200 to determine whether the Soldier will be referred to the PEB. Approval and suspension of an AR 635-200 separation action is not authorized when the Soldier is pending both an AR 635-200 and AR 635-40 action. The GCMCA must decide which action to pursue (as described in AR 635-200). Soldiers continue to be eligible for these administrative separation actions up until the day of their separation or retirement for disability even though their PEB findings have been previously completed and approved by USAPDA for the SECARMY. In no case will a Soldier, being processed for an administrative separation for fraudulent enlistment or misconduct be discharged through the DES process without the approval of the GCMCA.
Major Michael J. Scaletty *
* Judge Advocate, United States Army. LL.M., 2017, The Judge Advocate General's School, United States Army, Charlottesville, Virginia; J.D., 2007, Washburn University; B.A., 2004, Washburn University. Assignments include Special Victim Prosecutor, United States Army Legal Services Agency, United States Army Alaska, Fort Wainwright and Joint Base Elmendorf-Richardson, Alaska, 2014-2016; Administrative Law Attorney, 1st Infantry Division, Fort Riley, Kansas, 2013-2014; Brigade Judge Advocate, Task Force Durable, Bagram Airfield, Afghanistan, 2012-2013; Brigade Judge Advocate, 1st Sustainment Brigade, Fort Riley, Kansas, 2011-2012; Senior Trial Counsel, 4th Infantry Division, Fort Carson, Colorado, February 2011-July 2011; Trial Counsel/Operational Law Attorney, 3d Brigade Combat Team, 4th Infantry Division, COB Adder, Iraq, 2010-2011; Trial Counsel/Operational Law Attorney, 3d Brigade Combat Team, 4th Infantry Division, 2009-2010; Officer In Charge, Fort Carson Tax Center, Fort Carson Colorado, 2008-2009; Legal Assistance Attorney, Fort Carson, Colorado, 2008. Member of the bar of Kansas. This paper was submitted in partial completion of the Master of Laws requirements of the 65th Judge Advocate Officer Graduate Course.
(1) Dave Phillips, Disposable: Surge in Discharges Includes Wounded Soldiers, THE GAZETTE (May 19, 2013), http://cdn.csgazette.biz/soldiers/day1.html.
(3) This assertion is based on the author's professional experiences as the Trial Counsel/Operational Law Attorney for 3d Brigade Combat Team, 4th Infantry Division, Fort Carson, Colorado from 2009 to 2011 [hereinafter Fort Carson Professional Experience].
(4) U.S. GOV'T ACCOUNTABILITY OFF., GAO-11-191T, MILITARY AND VETERANS DISABILITY SYSTEM: PRELIMINARY OBSERVATIONS ON EVALUATION AND PLANNED EXPANSION OF DOD/VA PILOT (2010).
(5) Nick Wills, Army News Serv., IDES & Medical Readiness: For the Health of the Force, June 26, 2015, https://www.army.mil/article/151295/IDES_Medical_Readiness_For _the_Health_of_the_Force. See also U.S. DEP'T OF DEF., INSTR. 6490.07, DEPLOYMENT-LIMITING MEDICAL CONDITIONS FOR SERVICE MEMBERS AND DOD CIVILIAN EMPLOYEES encl. 3 (5 Feb. 2010).
(6) Fort Carson Professional Experience, supra note 3.
(9) Phillips, supra note 1.
(11) Id. The article by Dave Phillips sparked interest from National Public Radio which led to an inquiry by Secretary of the Army Eric Fanning and more national attention. See id. See also Daniel Zwerdling, Missed Treatment: Soldiers with Mental Health Issues Dismissed for 'Misconduct', NAT'L PUB. RADIO (Oct. 28, 2015), http://www.npr.org/2015/10/28/451146230 /missed-treatment-soldiers-with-mental-health-issues-dismissed-for -misconduct; Denver Nicks, U.S. Army Kicked Out Thousands of Mentally Injured Vets for 'Misconduct,' Report Says, TIME (Oct. 28, 2015), http://time.com/4091809/u-s-army -mentally-illmisconduct-kicked-out/; Kellan Howell, U.S. Army Dismissed Thousands of Soldiers with Mental Health Problems for 'Misconduct': report, THE WASH. TIMES (Oct. 29, 2015), http://www.washingtontimes.com/news /2015/oct/29/us-army-dismissed-thousands-soldiers-mental-health/.
(12) The S1 is the principal staff officer for all matters concerning human resources, which include personnel readiness, personnel services, and headquarters management. U.S. DEP'T OF ARMY, FIELD MANUAL 101-5, STAFF ORGANIZATION AND OPERATIONS (31 MAY 1997).
(13) David Vergun, Army News Serv., Dailey: Non-deployable Soldiers No. 1 Problem, U.S. ARMY, Nov. 19, 2015, https://www.army.mil/article/158897/Dailey_Non_deployable_Soldiers _No_1_problem.
The biggest problem in the Army today is Soldiers who are non-deployable, and that's having a direct impact on readiness, Sgt. Maj. of the Army Daniel A. Dailey said.... "If you will not or cannot fight and win, then there's no place for you in the Army," Dailey said, "We have to become unemotional about this. We have a job to do."
Id. See also Scott Maucione, Only a Fraction of Non-deployable Soldiers are Capable of Regaining Deployable Status, FED. NEWS RADIO (June 13, 2016), http://federalnewsradio.com/army /2016/06/fraction-non-depolyable -soldiers-capable-regaining-deployable-status/.
[T]he Army has about 100,000 troops that are 'non-deployable,' [Vice Chief of Staff of the Army Gen. Daniel B. Allyn] said, adding that about 80 percent of those Soldiers are unable to deploy due to medical issues. Personnel readiness is the Army's No. 1 priority, he emphasized. One fix is to get as many Soldiers healthy as possible: 'Suffice to say that we're probably talking about 10,000 that we can expect to get back in by those means,' Allyn said. Another solution is to work with Veterans Affairs to speed up the process of determining disability claims and medical retirements. These 'Soldiers for Life' deserve a quicker resolution so that they can get the help they need, he said.
Gary Sheftik, Army News Serv., Allyn Outlines Keys to Readiness Under Pressure, U.S. ARMY, June 16, 2016, https://www.army.mil/article/169797.
(14) Integrated Disability Evaluation System, U.S. ARMY CARE & TRANSITION, http://www.wtc.army.mil/ modules/soldier/s6-ides.html (last visited Nov. 22, 2016).
(15) U.S. DEP'T OF DEF., REPORT TO CONGRESS--REVIEW OF INTEGRATED DISABILITY EVALUATION SYSTEM 26 (2014) [hereinafter DOD REPORT TO CONGRESS].
(16) Scott Arnold et al., Non-Deployable Soldiers: Understanding the Army's Challenge (May 11, 2011) (unpublished Master of Strategic Studies research project, U.S. Army War College) (on file with author). See also National Defense Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, [section] 402, 130 Stat. 2000 (2016). Throughout this paper several citations are made to unpublished war college research projects. These research projects are not formally published, but are kept in a repository online at the defense technical information center (DTIC). While the unpublished materials are kept on file with the author, they may also be found at DEF. TECHNICAL INFO. CTR., http://www.dtic.mil/dtic/ (last visited Mar. 15, 2017).
(17) The Sergeant Major of the Army and the Vice Chief of Staff of the Army have both expressed serious concern about non-deployable Soldiers and the effect on readiness. Gary Sheftik, supra note 13; Michelle Tan, Sergeant Major of the Army Dan Dailey's 6 Priorities for 2016, ARMY TIMES (Feb. 17, 2016), https://www.armytimes.com/story/military/careers/army/2016/02 /17/sergeant-majorarmy-dan-daileys-6-priorities-2016/80015482/.
(18) James R. Andrews, Transformation of the Army's Physical Disability Evaluation System (Jan. 6, 2011) (unpublished Master of Strategic Studies research project, U.S. Army War College) (on file with author). "The [Department of Defense (DOD)] disability evaluation is focused on the effect of any disabling condition on the performance of the service member's duties in the military, while the [Department of Veterans Affairs (VA)] evaluate[s] an individual's prospects for gainful employment in the civilian economy." Id. at 2. See also U.S. DEP'T OF ARMY, REG. 635-40, DISABILITY EVALUATION FOR RETENTION, RETIREMENT, OR SEPARATION para. 4-1 (19 Jan. 2017) [hereinafter AR 635-40].
(19) Dana Priest & Anne Hull, Soldiers Face Neglect, Frustration at Army's Top Medical Facility, Wash. Post (Feb. 18, 2007), http://www.washingtonpost.com/wpdyn/content/article/2007/02/17 /AR2007021701172_ pf.html.
(20) Dignified Treatment of Wounded Warriors Act, H.R. 1538, 110th Cong. (2008) [hereinafter Wounded Warriors Act]. See also Andrews, supra note 18.
(21) Dana Priest & Anne Hull, supra note 19.
(22) U.S. DEP'T OF DEF., ANNUAL PERFORMANCE REPORT FY 2015, at 6 (2015).
(23) U.S. DEP'T OF DEF., INSTR. 1332.18, DISABILITY EVALUATION SYSTEM (5 Aug. 2014) [hereinafter DODI 1332.18]. Soldiers in the Integrated Disability Evaluation System (IDES) do not separate for a medical condition until completion of both the DOD and VA disability ratings. Id. encl. 3, para. 4d.
(24) U.S. DEP'T OF army, PAM. 635-40, PROCEDURES FOR DISABILITY EVALUATION FOR RETENTION, RETIREMENT, OR SEPARATION para. 3-2 (12 Jan. 2017) [hereinafter DA PAM 635-40]. See generally U.S. ARMY MEDICAL COMMAND, IDES GUIDEBOOK: AN OVERVIEW OF THE INTEGRATED DISABILITY EVALUATION SYSTEM para. 1-3 (Oct. 2012) [hereinafter IDES GUIDEBOOK]. The IDES Guidebook is an informal publication maintained by the United States Army Medical Command (MEDDAC) to unify efforts. Id. The IDES Guidebook states,
To ensure that Soldiers, Commands, and Army Staff each have a clear understanding of their critical contributions to smooth case processing, the core IDES process must be standardized. Accountability measures must be put in place at all levels across the Army. This guidebook defines the processes, roles and responsibilities, and the standards that will be measured at all levels of the enterprise.
Id. The Department of the Army published Pamphlet 635-40 (DA PAM 635-40) in January of 2017, codifying a significant portion of the IDES Guidebook. However, DA PAM 635-40 does not have the same level of detail as the IDES Guidebook. See generally IDES GUIDEBOOK, supra; DA PAM 635-40, supra. There are no noticeable contradictions between the new DA PAM 635-40 and the IDES Guidebook. See generally IDES GUIDEBOOK, supra; DA PAM 635-40, supra. As such, this paper still considers IDES Guidebook a reliable source of procedural requirements for the administration of IDES cases within the Army.
(25) DA PAM 635-40, supra note 24, para. 3-2. See generally IDES GUIDEBOOK, supra note 24.
(26) IDES GUIDEBOOK, supra note 24, para. 1-3.
(27) Id. para. 1-2.
(28) A medical profile limits what duties a Soldier can perform. U.S. DEP'T OF ARMY, Reg. 40-501, STANDARDS OF MEDICAL FITNESS para. 7-4 (22 Dec. 2016) [hereinafter AR 40-501]. Temporary profiles are intended to allow time for recovery and have expiration dates, whereas permanent profiles do not expire and limit a Soldier's duties indefinitely. Id.
(29) IDES GUIDEBOOK, supra note 24, para. 1-5.
(30) Id. para. 1-4.
(31) DA PAM 635-40, supra note 24, para. 3-2a(2). See also IDES GUIDEBOOK, supra note 24, para. 1-3. It appears the drafters of DA PAM 635-40 made an oversight in their math when calculating the target timeline. In paragraph 3-2a(1), DA PAM 635-40 states that the overall target timeline is 295 days; however, each phase's target timeline adds to 310 days. DA PAM 635-40, supra note 24, para. 3-2a(2). The MEB phase target is 100, the physical evaluation board (PEB) phase target is 120 days, and the transition phase target is 90 days for a total of 310 days. See id. This paper recognizes the target goal of 295 days, but also relies on each individual phase's target acknowledging the mathematical anomaly.
(32) DODI 1332.18, supra note 23, encl. 3, para. 2a. See generally AR 40-501, supra note 28.
(33) DA PAM 635-40, supra note 24, para. 3-2a(2). See also IDES guidebook, supra note 24, para. 1-7.
(34) DA PAM 635-40, supra note 24, para. 3-2. See also IDES GUIDEBOOK, supra note 24.
(35) DA PAM 635-40, supra note 24, para. 3-2a(2)(a). See also IDES GUIDEBOOK, supra note 24, para. 1-7.
(36) DA PAM 635-40, supra note 24, para. 3-4; IDES GUIDEBOOK, supra note 24, para. 1-9. This allows an immediate commander to have input early in the process and greatly assists the process by allowing non-medical personnel to evaluate the Soldier's ability to perform. DA PAM 635-40, supra note 24, para. 3-4; IDES GUIDEBOOK, supra note 24, para. 1-9.
(37) DA PAM 635-40, supra note 24, para. 3-4; IDES GUIDEBOOK, supra note 24, para. 1-9.
(38) DA PAM 635-40, supra note 24, para. 3-2a(2)(b); IDES GUIDEBOOK, supra note 24, para. 1-11.
(39) IDES GUIDEBOOK, supra note 24, para. 1-11. See also DA PAM 635-40, supra note 24, para. 3-2a(2)(b). See generally Schedule for Rating Disabilities, 38 C.F.R. pt. 4 (2017).
(40) The compensation and pension (C&P) exam is conducted by Department of Veteran's Affairs (VA) physicians and is the first step in the IDES process exclusively for the purposes of VA disability evaluation. IDES GUIDEBOOK, supra note 24, para. 1-11. See also DA PAM 635-40, supra note 24, para. 3-5.
(41) DA PAM 635-40, supra note 24, para. 3-2a(2)(c); IDES GUIDEBOOK, supra note 24, para. 1-12. The IDES GUIDEBOOK refers to this stage as the medical exam stage, the DA PAM 635-40 labels this stage the VA disability examination stage. DA PAM 635-40, supra note 24, para. 3-2a(2)(c); IDES Guidebook, supra note 24, para. 1-12.
(42) IDES GUIDEBOOK, supra note 24, para. 1-12.
(43) IDES GUIDEBOOK, supra note 24, para. 1-11 to 1-18.
(44) IDES GUIDEBOOK, supra note 24, para. 1-13. "The designated exam provider(s) will provide a general medical examination which will address not only those conditions claimed by the Soldier and referred by the [medical evaluation board (MEB)] provider, but also include a comprehensive screening examination of all body systems." Id.
(45) IDES GUIDEBOOK, supra note 24, para. 1-14.
(46) DA PAM 635-40, supra note 24, para. 3-4d; IDES GUIDEBOOK, supra note 24, para. 1-10. See also Kirk Frady, Army News Serv., Missed Medical Appointments Impact Readiness, U.S. ARMY (Aug. 25, 2016), https://www.army.mil/article/173976/missed_medical_appointments_impact _readiness; David White, Army News Serv., 'No-Show'Appointments Cost EAMC $3MLast Year, U.S. ARMY (Feb. 28, 2017), https://www.army.mil/article/183361/no_show_appointments_cost_eamc _3m_last_year.
(47) DA PAM 635-40, supra note 24, para. 3-2a(2)(d); IDES GUIDEBOOK, supra note 24, para. 1-22.
(48) DA PAM 635-40, supra note 24, para. 3-2a(2)(d); IDES GUIDEBOOK, supra note 24, para. 1-17.
(49) IDES GUIDEBOOK, supra note 24, para. 1-16.
(50) IDES GUIDEBOOK, supra note 24, para. 1-18; DA PAM 635-40, supra note 24, para. 3-5a.
(51) See generally IDES GUIDEBOOK, supra note 24; U.S. DEP'T OF ARMY, REG. 635-40, DISABILITY EVALUATION FOR RETENTION, RETIREMENT, OR SEPARATION para. 4-1 (19 Jan. 2017) [hereinafter AR 635-40]; See generally DA PAM 635-40, supra note 24.
(52) See supra note 51. Very few Soldiers are returned to duty and providers are encouraged by Congress from returning Soldiers to duty because it shows a lack of efficiency. See generally Review of the VA and DOD Integrated Disability Evaluation System: Hearing Before the S. Comm. On Veterans' Affairs, 111th Cong. 913 (2010) [hereinafter Congressional Testimony of John R. Campbell] (statement of John R. Campbell, Deputy Under Secretary of Defense, Office of Wounded Warrior Care and Transition Policy).
(53) DA PAM 635-40, supra note 24, para. 3-2a(3); IDES GUIDEBOOK, supra note 24, para. 1-20.
(54) DOD REPORT TO CONGRESS, supra note 15.
(55) DODI 1332.18, supra note 23. An Impartial Medical Review (IMR) serve as an independent means of review of the MEB findings and advise the Soldier on whether the MEB findings are complete. Id. encl. 3, para. 2e(4).
(56) DOD REPORT TO CONGRESS, supra note 15. The new DA PAM 635-40 sets the target for the MEB phase at one hundred days, but does not include the rebuttal in that timeline. DA PAM 635-40, supra note 24, para. 3-2a(2). The stages within the MEB phase and their timelines are the referral stage at ten days, claim development stage at ten days, the VA disability examination stage at forty-five days, the MEB stage at thirty-five days for a total of 100 days. Id. The DA PAM 635-40 then mentions a MEB rebuttal stage estimated at twenty days, bringing the total to one hundred twenty days, but the regulation does not discuss the time added by rebuttals in their target processing timelines. Id.
(57) DOD REPORT TO CONGRESS, supra note 15. See also AR 635-40, supra note 18, para. 4-3.
(58) DODI 1332.18, supra note 23, encl. 3, para. 3a. See Integrated Disability Evaluation System, U.S. ARMY CARE & TRANSITION, http://www.wtc.army.mil/modules/ soldier/s6-ides.html (last visited Nov. 22, 2016).
(59) DODI 1332.18, supra note 23, encl. 3, para. 3a.
(60) DA PAM 635-40, supra note 24, para. 3-2a(3).
(61) DA PAM 635-40, supra note 24, para. 3-2a(3)(a); IDES GUIDEBOOK, supra note 24, para. 1-23.
(62) IDES GUIDEBOOK, supra note 24, para. 1-23.
(63) IDES GUIDEBOOK, supra note 24, para. 1-23. Providers are pressured to refrain from returning Soldiers to duty. See generally Congressional Testimony of John R. Campbell, supra note 52.
(64) IDES GUIDEBOOK, supra note 24, para. 1-23. Disability ratings are calculated on a percentage basis and used to calculate monetary compensation for the DOD and the VA. Id.; See 38 C.F.R. pt. 4 (2017). The VA rates all conditions using the VA schedule for rating disabilities (VASRD), and the DOD copies those ratings for conditions unfitting for military service. See 38 C.F.R. pt. 4 (2017).
(65) IDES GUIDEBOOK, supra note 24, para. 1-26.
(66) DA PAM 635-40, supra note 24, para. 3-2a(3)(b); IDES GUIDEBOOK, supra note 24, para. 1-27. The Soldier is not required to request a formal PEB, and if the Soldier does not request the formal PEB, the case simply skips that step. Id.
(67) DA PAM 635-40, supra note 24, para. 3-10; IDES GUIDEBOOK, supra note 24, para. 1-27.
(68) DA PAM 635-40, supra note 24, para. 3-11; IDES GUIDEBOOK, supra note 24, para. 1-28.
(69) AR 635-40, supra note 18, para. 4-21; DODI 1332.18, supra note 23, encl. 3, para. 3d.
(70) AR 635-40, supra note 18, para. 4-5; DODI 1332.18, supra note 23, encl. 3, para. 3h.
(71) DA PAM 635-40, supra note 24, para. 3-11. See also DODI 1332.18, supra note 23, encl. 3, para. 3h; IDES GUIDEBOOK, supra note 24, para. 130.
(72) IDES GUIDEBOOK, para. 1-30. See also DA PAM 635-40, supra note 24, para. 3-13.
(73) IDES GUIDEBOOK, supra note 24, para. 1-30.
(74) DA PAM 635-40, supra note 24, para. 3-2a(4); IDES GUIDEBOOK, supra note 24, para. 1-32.
(76) DA PAM 635-40, supra note 24, para. 3-2a(4); IDES GUIDEBOOK, supra note 24, paras. 1-32, 1-35.
(77) National Defense Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, [section] 402, 130 Stat. 2000 (2016).
(78) Maucione, supra note 13.
(79) U.S. Army Pub. Aff., THE PENTAGON, FORT HOOD FACT SHEET NO. 0715 (3 Mar. 2010), http://www.hood.army.mil/facts/FS%200715%20%20 -Non-Deployables.pdf. This factsheet distributes statistics from the entire Army to the Fort Hood community. Id.
(80) Matthew Cox, Army Has 50,000 Active Soldiers Who Can't Deploy, Top NCO Says, Military.com (Nov. 25, 2015), http://www.military.com/daily -news/2015/11/25/army-has-50000-active-soldiers-who-cant-deploy-top -nco-says.html.
(81) Arnold et al., supra note 16; Cox, supra note 80.
(82) Tan, supra note 17.
(85) Cox, supra note 80.
(86) Arnold et al., supra note 16.
(88) IDES GUIDEBOOK, supra note 24, para. 1-2.
(89) See AR 40-501, supra note 28, ch. 7.
(90) Arnold et al., supra note 16.
The November 24, 2010, IDES report data revealed 16,000 Service members participating in the program and 3,800 Service members who had completed the program. Active component personnel averaged 318 days from enrollment to completion. This exceeds the IDES goal of 295 days, however, it is 41% faster than the legacy DES and subsequent VA claims process, which together total 540 days to complete. This is beneficial for the Soldier in that he or she receives their first VA disability payment faster, though the Soldier remains on active duty slightly longer.
(92) DA PAM 635-40, supra note 24, para. 3-2a. See generally IDES Guidebook, supra note 24.
(93) DOD REPORT TO CONGRESS, supra note 15. The percentage of cases meeting processing timeline goals were 24% in Fiscal Year 2012 (FY12), 32% in FY13, 79% in FY14, and 87% in FY15. U.S. DEP'T OF DEF., ANNUAL PERFORMANCE REPORT FY 2015, at 26 (2015) [hereinafter PERFORMANCE REPORT].
(94) PERFORMANCE REPORT, supra note 93, at 26. The DOD performance report to Congress indicated that the number one Agency Priority Goal (APG) included "accelerating the transition of recovering Service Membe into Veteran status by reducing disability evaluation processing time." Id.
(96) DA PAM 635-40, supra note 24, para. 3-4d; IDES GUIDEBOOK, supra note 24, para. 1-10.
(97) IDES GUIDEBOOK, supra note 24, para. 1-10.
The unit command is responsible for coordinating transportation so the Soldier reports to scheduled appointments and examinations on time. If a Soldier misses ("no-shows") any appointment without any prior notification to the unit command and [physical evaluation board liaison officer (PEBLO)], the unit must allocate resources and assign an escort to accompany the Soldier to all future IDES appointments. Missed appointments create unnecessary delays in the IDES process.
(98) Arnold et al., supra note 16; See also AR 635-40, supra note 28, para. 43. Several types of misconduct require initiation of administrative separation under Army regulations, for example, drug use and two alcohol related offenses in one year require processing an administrative separation. U.S. DEP'T OF ARMY, REG. 600-85, THE ARMY SUBSTANCE ABUSE PROGRAM para. 1-7(c)(7) (28 Dec. 2012).
(99) Arnold et al., supra note 16.
(100) U.S. DEP'T OF ARMY, REG. 635-200, ENLISTED ADMINISTRATIVE SEPARATIONS para. 1-33 (19 Dec. 2016) [hereinafter AR 635-200].
When the medical treatment facility (MTF) commander or attending medical officer determines that a Soldier being processed for administrative separation under ... chapter ... 14 [misconduct], does not meet the medical fitness standards for retention (see AR 40-501, chap 3), he/she will refer the Soldier to a MEB in accordance with AR 40-400. The administrative separation proceedings will continue, but final action by the separation authority will not be taken, pending the results of MEB.
(101) Arnold et al., supra note 16.
(102) Sheftik, supra note 13; Tan, supra note 17; Arnold et al., supra note 16.
(103) Arnold et al., supra note 16; John E. Sena, Non-Deployables: An Increasing Challenge for the Army (Dec. 04, 2010) (unpublished Master of Strategic Studies research project, U.S. Army War College) (on file with author).
(104) Sena, supra note 103.
In 2007, the Army created 35 warrior transition units (WTUs) at Army installations to fill a gap in support personnel for wounded Soldiers. The WTUs provide critical support to wounded Soldiers who are expected to require six months of rehabilitative care and the need for complex medical management. The units have physicians, nurses, squad leaders, platoon sergeants, and mental health professionals. These leaders are responsible for making sure wounded Soldiers' needs are met, their care is coordinated, and their Families are taken care of.
Id. See generally U.S. DEP'T OF ARMY, REG. 40-58, WARRIOR CARE AND TRANSITION PROGRAM (23 Mar. 2015).
(105) Thomas E. Ricks, Here's How Screwed Up the Army's Warrior Transition Units Are: Genuinely Sick Soldiers Try to Get Out of Using Them, FOREIGN POL'Y MAG. (June 17, 2010), http://foreignpolicy.com/2010 /06/17/heres-how-screwed-up-the-armys -warrior-transition-units-are-genuinely-sick-soldiers-try-to-get -out-of-using-them/.
(106) David Tarrant & Scott Friedman, Badly Wounded Veterans Need Better Care From Special Army Units, Report Says, DALLAS NEWS (Nov. 2011), http://www.dallasnews.com/news/investigations /2016/11/11/federal -probe-army-needs-improve-care-wounded-warriors.
(107) Ricks, supra note 105.
(108) Fort Carson Professional Experience, supra note 3.
(110) Fourth Infantry Division and Fort Carson established a provisional unit called Task Force Ivy to hold non-deployable Soldiers and free space in deploying units to fill various military occupational specialties and increase the deploying units deployable percentage. Fort Carson Professional Experience, supra note 3.
(111) Arnold et al., supra note 16.
(113) Phillips, supra note 1.
(114) AR 635-200, supra note 100, para. 1-33. In an effort to combat this shortcut, Congress now requires mental health examinations for all Soldiers deployed within a twenty-four month period prior to their separation. 10 U.S.C. [section] 1177 (2017).
(115) AR 635-200, supra note 100, paras. 10-1, 10-2.
(116) AR 635-40, supra note 18, para. 4-5.
(118) Colonel Jonathan Kent, Med. Command Staff Judge Advocate, Impact of Misconduct during Army Physical Disability Evaluation System Process (2 Jan. 2012) (unpublished information paper) (on file with author).
(120) National Defense Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, [section] 402, 130 Stat. 2000 (2016).
(122) In Congressional testimony, John R. Campbell, Deputy Under Secretary of Defense, Office of Wounded Warrior Care and Transition Policy, stated that one of his objectives was to "to reduce superfluous referrals in which servicemembers were returned to duty ...." Congressional Testimony of John R. Campbell, supra note 52.
(123) See generally DODI 1332.18, supra note 23.
(124) See infra Appendix A.
(125) Congressional Testimony of John R. Campbell, supra note 52.
(126) Katherine Rosario, Army News Serv., Appointment No-Shows are Costly in Dollars, Time, U.S. ARMY (Dec. 5, 2013), https://www.army.mil/article/116502/Appointment_no_shows_are_costly _in_dollars_time. See also Frady, supra note 46; White, supra note 46.
(127) See IDES GUIDEBOOK, supra note 24, para. 1-10.
(128) See generally DODI 1332.18, supra note 23. Soldiers discharged without completing the IDES may still be able to obtain VA disability pay under certain circumstances. In other words, a discharge does not necessarily remove all opportunity to recoup for injury or illness sustained on active duty. See 38 U.S.C. [section] 5303 (2016).
(129) Generally, the uniform code of military justice (UCMJ) applies to Soldiers at all times. See 10 U.S.C. [section][section] 801-946 (2016). Commanders have an obligation to enforce good order and discipline within their units, and Soldiers have an obligation to conduct themselves within good order and discipline. See generally U.S. DEP'T OF ARMY, REG. 600-20, ARMY COMMAND POLICY (6 Nov. 2014).
(130) Soldiers who commit minor misconduct while enrolled in the IDES are protected from administrative separation until completion of the medical evaluation board phase of the IDES (unless the administrative separation is in lieu of court-martial). U.S. Dep'T Of Army, Reg. 635-200, Standards Of Medical Fitness para. 1-33 (19 Dec. 2016). Therefore, many Soldiers and commanders believe the IDES is used as a shield. See generally Arnold et al., supra note 16.
(131) Examples of misconduct that interferes with IDES processing includes repeatedly failing to report for medical appointments, disrespect or disruptive behavior toward providers, lengthy civilian confinement, etc. It does not include misconduct independent of the IDES process such as drug use without a dependence diagnosis or disrespect to a senior noncommissioned officer or officer.
(132) See infra Appendix B.
(133) National Defense Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, [section] 401, 130 Stat. 2000, 2016 (2016).
(134) U.S. Dep't of Army, Reg. 635-200, Standards of Medical Fitness para. 1-33 (19 Dec. 2016).
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