10 U.S.C. § 1554a: Review of separation with…

Summary

The Secretary of Defense must create a Physical Disability Board of Review inside the Office of the Secretary of Defense. The board must have at least three members. It will review decisions made by Physical Evaluation Boards for service members or former members who were separated between September 11, 2001, and December 31, 2009, because they were unfit for duty for a medical reason, had a disability rating of 20 percent or less, and were found not eligible for retirement. A covered person, their surviving spouse, next of kin, or legal representative can ask for a review. The board can also start a review on its own, but only after notifying and getting consent from the person or their representative. Reviews use the service records and any other evidence, including witness statements by affidavit or other methods allowed by the Secretary of Defense. If a person asks for or agrees to a board review, they may not also seek relief from the service’s Board for Correction of Military Records for the same matter. If the board finds a change is needed, it can recommend keeping the original decision, changing the separation to disability retirement, increasing or issuing a disability rating (but not lowering a prior rating), or issuing other corrections. The military service secretary can fix the records based on those recommendations and make the correction effective from the original PEB action date. If the person already received a lump-sum or back pay at separation, any new payment will be reduced to account for that earlier payment. The Secretary of Defense must write rules for how the board works and set reasonable deadlines. On or after the date the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021 was enacted, the Secretary may close this board and transfer pending or new requests to the service’s Board for Correction of Military Records; the rule barring correction-board relief does not apply to those transferred reviews.

Title 10, §1554a

Armed Forces, Source: USLM XML via OLRC

(a)In General.—

(1)The Secretary of Defense shall establish within the Office of the Secretary of Defense a board of review to review the disability determinations of covered individuals by Physical Evaluation Boards. The board shall be known as the “Physical Disability Board of Review”.

(2)The Physical Disability Board of Review shall consist of not less than three members appointed by the Secretary.

(b)Covered Individuals.—

For purposes of this section, covered individuals are members and former members of the armed forces who, during the period beginning on September 11, 2001, and ending on December 31, 2009—

(1)are separated from the armed forces due to unfitness for duty due to a medical condition with a disability rating of 20 percent disabled or less; and

(2)are found to be not eligible for retirement.

(c)Review.—

(1)Upon the request of a covered individual, or a surviving spouse, next of kin, or legal representative of a covered individual, the Physical Disability Board of Review shall review the findings and decisions of the Physical Evaluation Board with respect to such covered individual. Subject to paragraph (3), upon its own motion, the Physical Disability Board of Review may review the findings and decisions of the Physical Evaluation Board with respect to a covered individual.

(2)The review by the Physical Disability Board of Review under paragraph (1) shall be based on the records of the armed force concerned and such other evidence as may be presented to the Physical Disability Board of Review. A witness may present evidence to the Board by affidavit or by any other means considered acceptable by the Secretary of Defense.

(3)If the Physical Disability Board of Review proposes to review, upon its own motion, the findings and decisions of the Physical Evaluation Board with respect to a covered individual, the Physical Disability Board of Review shall notify the covered individual, or a surviving spouse, next of kin, or legal representative of the covered individual, of the proposed review and obtain the consent of the covered individual or a surviving spouse, next of kin, or legal representative of the covered individual before proceeding with the review.

(4)With respect to any review by the Physical Disability Board of Review of the findings and decisions of the Physical Evaluation Board with respect to a covered individual, whether initiated at the request of the covered individual or a surviving spouse, next of kin, or legal representative of the covered individual or initiated by the Physical Disability Board of Review, the Physical Disability Board of Review shall notify the covered individual or a surviving spouse, next of kin, or legal representative of the covered individual that, as a result of the request or consent, the covered individual or a surviving spouse, next of kin, or legal representative of the covered individual may not seek relief from the Board for Correction of Military Records operated by the Secretary concerned.

(d)Authorized Recommendations.—

The Physical Disability Board of Review may, as a result of its findings under a review under subsection (c), recommend to the Secretary concerned the following (as applicable) with respect to a covered individual:

(1)No recharacterization of the separation of such individual or modification of the disability rating previously assigned such individual.

(2)The recharacterization of the separation of such individual to retirement for disability.

(3)The modification of the disability rating previously assigned such individual by the Physical Evaluation Board concerned, which modified disability rating may not be a reduction of the disability rating previously assigned such individual by that Physical Evaluation Board.

(4)The issuance of a new disability rating for such individual.

(e)Correction of Military Records.—

(1)The Secretary concerned may correct the military records of a covered individual in accordance with a recommendation made by the Physical Disability Board of Review under subsection (d). Any such correction may be made effective as of the effective date of the action taken on the report of the Physical Evaluation Board to which such recommendation relates.

(2)In the case of a member previously separated pursuant to the findings and decision of a Physical Evaluation Board together with a lump-sum or other payment of back pay and allowances at separation, the amount of pay or other monetary benefits to which such member would be entitled based on the member’s military record as corrected shall be reduced to take into account receipt of such lump-sum or other payment in such manner as the Secretary of Defense considers appropriate.

(3)If the Physical Disability Board of Review makes a recommendation not to correct the military records of a covered individual, the action taken on the report of the Physical Evaluation Board to which such recommendation relates shall be treated as final as of the date of such action.

(f)Regulations.—

(1)This section shall be carried out in accordance with regulations prescribed by the Secretary of Defense.

(2)The regulations under paragraph (1) shall specify reasonable deadlines for the performance of reviews required by this section.

(3)The regulations under paragraph (1) shall specify the effect of a determination or pending determination of a Physical Evaluation Board on considerations by boards for correction of military records under section 1552 of this title.

(g)Sunset.—

(1)On or after the date of the enactment of the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021, the Secretary of Defense may sunset the Physical Disability Board of Review under this section.

(2)If the Secretary sunsets the Physical Disability Board of Review under paragraph (1), the Secretary shall transfer any remaining requests for review pending at that time, and shall assign any new requests for review under this section, to a board for the correction of military records operated by the Secretary concerned under section 1552 of this title.

(3)Subsection (c)(4) shall not apply with respect to any review conducted by a board for the correction of military records under paragraph (2).

Notes & Related Subsidiaries

Editorial Notes

References in Text

The date of the enactment of the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021, referred to in subsec. (g)(1), is the date of enactment of Pub. L. 116–283, which was approved Jan. 1, 2021.

Amendments

2021—Subsec. (g). Pub. L. 116–283 added subsec. (g). Subsec. (g)(2). Pub. L. 117–81 struck out second period at end.

Statutory Notes and Related Subsidiaries

Implementation Pub. L. 110–181, div. A, title XVI, § 1643(b), Jan. 28, 2008, 122 Stat. 467, provided that: “The Secretary of Defense shall establish the board of review required by section 1554a of title 10, United States Code (as added by subsection (a)), and prescribe the

Regulations

required by such section, not later than 90 days after the date of the enactment of this Act [Jan. 28, 2008].”

§1554a Review of Separation with Disability Rating of 20 Percent Disabled or Less