Medically boarded Soldiers gain better legal counsel
March 27, 2009
SCHOFIELD BARRACKS, Hawaii - They're not your parents, but Mark German and Capt. Sherrie Rivera just want what's best for you, the Soldier.
Attached to the Warrior Transition Unit, German and Rivera are legal advocates for Soldiers whose injuries or medical conditions might force them to leave the service. However, they don't just represent wounded warriors; they provide assistance to any Soldier who is in the process of being medically separated from the Army.
"Things have really changed in the last few years," said German, outreach counsel, Medical Evaluation Board (MEB). German advises Soldiers of their rights and briefs them on the process prior to the MEB.
The MEB, which is comprised of three physicians, determines if a Soldier's conditions fail medical retention standards based on medical regulation Army Regulation (AR) 40-501, according to Steven Engle, supervising attorney, Office of Soldiers' Counsel at Fort Lewis, Wash. A Soldier who fails retention standards at the MEB is then referred to the Physical Evaluation Board (PEB).
In contrast to the MEB, which is medically oriented, the PEB is more performance based. The PEB determines whether a Soldier is fit for duty, factoring his or her primary military occupational specialty, rank and the evidence submitted by the Soldier and counsel.
As Soldiers' counsel, Rivera represents Soldiers at the PEB like a defense attorney; she advises them of their rights, provides them with probable outcomes, and disputes unjust rulings.
In the past, Soldiers didn't really get a lot of help before going to the MEB, German said.
Back then, a PEB liaison officer, who received extensive training but was not legally trained, advised Soldiers during the MEB. Judge advocate general (JAG) lawyers advised Soldiers at the PEB, but did not have the extra support they currently receive from outreach counsel, such as German.
"They're being thrown so much paperwork that they don't even know what's happening," Rivera said.
The process is much more robust now.
With increasing numbers of wounded Soldiers returning from war, the Army has hired and mobilized nearly 40 lawyers and paralegals, including German and Rivera, to ensure Soldiers are better informed and protected during the process.
PEB liaisons still assist Soldiers, but MEB outreach counselors provide additional support early in the process and make the job easier for Soldiers' counsel at the PEB.
German recalled a recent case where a staff sergeant with a medical problem and more than 18 years of active duty was placed on temporary disability. The Soldier wasn't aware that he had the right to request to stay on active duty, and he signed paperwork waiving that right.
Had Rivera not argued for the Soldier to be put back on duty, the Soldier would have lost his retirement benefits. The Soldier was set to receive a lump sum check that was nowhere near the value of a retirement.
"Now he has a stronger case for getting the benefits he deserves," German said.
In addition to injuries, Rivera said she routinely handles cases involving cancer or other serious illnesses. She recalled one case in particular where she made a difference in a Soldier's life.
After a routine medical exam, doctors discovered an anomaly in a Soldier's brain that is an indicator of epilepsy.
The Soldier had not had any seizures and had never experienced any problems performing his job; in fact, he was an expert marksman. However, the doctors recommended separating him from the Army because of his potential to develop epilepsy.
Soldiers with a pre-existing or hereditary condition who are separated from the Army because of a medical condition, before they have served eight years, do not receive disability pay unless they can show that the Army permanently aggravated the condition. However, if they are separated after serving eight years in the Army, they can receive disability compensation.
Rivera appealed the board's decision, but lost. She appealed again, and got the same result. Still, she refused to give up.
After fighting for more than a year and appealing the case all the way to the surgeon general's office, Rivera finally won, and the Soldier was allowed to remain in the Army.
"He hadn't had any seizures, so why should we speculate about future problems'" Rivera said, passionately.
Recently, Rivera attended the Solder's graduation from the Warrior Leader Course. She cried during the ceremony.
No, Rivera and German aren't your parents, but they care about their Soldiers.