After you have had a formal Physical Evaluation Board (PEB) hearing to decide if disability has made you unfit for duty (and eligible for separation or disability discharge), you can choose whether to accept or appeal the PEB decision about issues such as your fitness to serve, your disability rating, and the type of unfitness finding issued.
If you accept the decision, it will be forwarded through personnel channels up to the Secretary of your branch of the military for final approval, and you may lose your rights to later appeal the decision.
If you disagree with the decision the Physical Evaluation Board issued after your hearing, you have the right to submit new statements and new evidence to the Secretary for your branch of the military. This new information will be reviewed by the person in the Secretary’s office who has been assigned responsibility for approving PEB decisions.
If you disagree with just the disability rating(s) you were given, you can appeal to the Physical Disability Board of Review (discussed below).
If you have been found fit to continue serving, you may or may not be given the opportunity to have new evidence reviewed. There is no legal right to appeal fit findings to the Secretary, so if you have a fit finding it will be at the discretion of the Secretary’s designee to perform the review or not.
You will want to submit a written request for a copy of the PEB records on your case. You will need this for any later appeals you may file.
There are basically three ways you can disagree with a PEB determination:
The most effective means of filing a disagreement is to provide new evidence. Perhaps there are some personnel evaluations that previously were not submitted, or you have had some new medical tests or started a new medication. The reviewer may be persuaded by these new facts to change the decision in your case.
The second way to disagree with the decision is to argue that the PEB made legal errors in its findings or recommendations. Perhaps the board didn’t adequately explain the reasoning behind its decision or neglected to provide a medical citation for its conclusions. These legal errors can help your case later on in other proceedings, even if they don’t have much effect at this level of review.
Finally, you can write a personal statement about procedural errors the PEB made or errors it made in deciding your case. Personal statements are not very helpful for your case, but may have influence on future PEB procedures or policies.
If the Secretary does not change the PEB decision based on your submitted disagreements, the PEB findings receive approval and become final. The next step is to submit a filing to the Board of Correction for Military Records (BCMR) for your branch. You technically have three years from discharge (not from the date of the PEB decision) to file with the BCMR. Often filings are accepted later than three years after the date of discharge.
The purpose of the BCMR is to correct any unfair or inaccurate entries in your military records. The burden is on you, however, to show that an unfair or erroneous entry has been made. If it is in the interests of “justice” to correct it, then BCMR will change the record.
Unless pursuing the BCMR process will interfere with your federal court rights (discussed below). it is a good idea to attempt a reversal of the Secretary’s decision at the BCMR. It can take anywhere from three months up to a year to receive the BCMR decision. Typically you will not be given the opportunity to appear at a hearing.
Use DD Form 149 to apply to the Board of Correction for Military Records of your branch of the military to request that the PEB findings be changed. Be sure to follow the application process for the BCMR in your branch of the service by following the links below.
Send your application to the BCMR for your branch at one of the following addresses:
Army Review Boards Agency
251 18th Street South, Suite 385
Arlington, VA 22202-3531
Navy and Marine Corps.
Board for Correction of Naval Records
701 S. Courthouse Road, Suite 1001
Arlington, VA 22204-2490
Board for Correction of Air Force Records SAF/MRBR
550-C Street West, Suite 40
Randolph AFB, TX 78150-4742
Department of Homeland Security
Office of the General Counsel
Board for Correction of Military Records
245 Murray Lane, Stop 0485
Washington, DC 20528-0485
For more information, read Nolo’s article about how to file file an application with the BCMR.
If the BCMR does not change the decision, in some cases you may want to consider filing an appeal in federal court. Appeals of BCMR decisions are usually filed in the U.S. Court of Federal Claims, but in some cases they may be filed in Federal District Court.
It will be best to have the advice and assistance of an attorney at this stage of appeal. However, if you choose to pursue the appeal yourself without the help of an attorney, use the court’s instructions for how to file an appeal.
Most federal appeals of BCMR decisions will go to the U.S. Court of Federal Claims. To be successful at the U.S. Court of Federal Claims, you will have to show that the BCMR decision was “arbitrary, capricious, an abuse of discretion” or in some way did not properly follow the law.
This is not an easy standard to meet. “Arbitrary and capricious” means there are no grounds whatsoever for the BCMR decision. To rule in your favor, the federal court would have to find that there was no reasonable way BCMR could have evaluated the facts of your case and issue the decision it did.
This means there will have to have been a significant error in judgment by the BCMR, one that is pretty much irrational based on the facts of your case. If the BCMR failed to follow the law as written, then this could be potential grounds for reversal in federal court.
There is a six-year statute of limitations for filing a case with the U.S. Court of Federal Claims, and it is strictly adhered to. Unlike with the BCMR, federal court statute of limitations cannot get waived or extended under ordinary circumstances.
If you believe the disability ratings assigned by the Physical Evaluation Board are unfair, an additional option is to appeal to the Physical Disability Board of Review. This board serves veterans from all branches of the military. The purpose of this board is to review disability ratings assigned by the military and to increase the ratings if they are inconsistent with the way the VA rates similar disabilities. Learn more about this process and how to apply for a military ratings review.