How to Appeal Findings of the Physical Evaluation Board (PEB)

After you've had a formal Physical Evaluation Board (PEB) hearing to determine whether you have a medical condition that makes you unfit for duty—and therefore eligible for discharge—you have a choice to make once you're notified of the outcome. You can accept or appeal the PEB findings on issues such as your fitness for continued service or your disability percentage ratings.

If you agree with the findings of the PEB, you don't have to do anything. The decision will be forwarded through personnel channels up to the Secretary of your military branch for final approval. But if you disagree with the PEB's decision, you should know what steps to take so that you can get your desired outcome on appeal.

The Physical Evaluation Board Appeal Process

If you disagree with the conclusion of the formal PEB hearing, you have the right to appeal by submitting new information 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.

Your next steps will depend on whether you disagree with a fitness finding or a disability rating. If you've been found fit to continue serving, you may or may not be given the opportunity to have new evidence reviewed. There's no legal right to appeal "fit findings" to the Secretary, so if you do have a fit finding review it will be at the discretion of the Secretary's designee.

If the PEB found you unfit to serve and you don't agree with that decision, you can file a disagreement with the Secretary. There are basically three ways you can disagree with a PEB determination—by providing new evidence, identifying legal errors made by the PEB, and submitting a personal statement.

Types of Disagreements to File With the Secretary

Providing new evidence is the most effective means of filing a disagreement. Consider whether there are some personnel evaluations that weren't previously submitted, or you've had revealing new medical tests that the PEB didn't have a chance to see. The reviewer may be persuaded by these new facts to change the decision in your case.

Another way to disagree with the decision is by arguing that the PEB made legal errors in its findings or recommendations. Perhaps the board didn't adequately explain the reasoning behind its decision to award you a low percentage rating or neglected to provide a medical citation as to why it found you unfit for duty. Raising these legal errors can help your case later on in other proceedings, even if they don't have much effect at this level of appeal.

Finally, you can write a personal statement about any procedural mistakes the PEB made or erroneous findings when deciding your case. Personal statements aren't very helpful for your case, but may have an influence on future PEB procedures or policies.

Appealing to the Physical Disability Board of Review

If you agree with the Physical Evaluation Board findings that you're unfit for continued service, but you think that your disability ratings should be higher (or are otherwise unfair), you can appeal to the Physical Disability Board of Review (PDBR).

The purpose of the PDBR 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. You can learn more about increasing your disability rating—including instructions on how to request a PDBR review—in our article on getting rating upgrades from the PDBR.

Filing an Appeal with the Board of Correction for Military Records

If the Secretary doesn't change the PEB decision based on your submitted disagreements, the PEB findings are approved and become final. The next step is to submit a filing to the Board of Correction for Military Records (BCMR) for your branch. The branch BCMR has the authority to correct any unfair or inaccurate entries in your military records. (10 U.S.C. 1552).

What Happens at the BCMR?

At this stage of appeal, your job is 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. You technically have three years after the discovery of the error or injustice—not from the date of the PEB decision—to file with the BCMR, but the board has discretion to accept filings after three years.

You don't have a right to a hearing with the BCMR, but you may request a personal appearance. Once you've filed your appeal, expect it to take between six and 18 months before you receive a decision.

How to File an Appeal With the BCMR

You'll need to complete DD Form 149, Application for Correction of Military Record, and submit it to the appropriate BCMR for your branch of service. You can find the contact information for the relevant branch below.

You can also visit the websites for each branch's BCMR for more information on branch-specific application procedures:

• Army: Army Board for Correction of Military Records
• Air Force: Air Force Board for Correction of Military Records
• Coast Guard: Board for Correction of Military Records of the Coast Guard
• Navy and Marines: Board for Correction of Naval Records

Learn more about how to file an appeal in our article on requesting corrections from the BCMR.

Filing a Federal Appeal

If the BCMR doesn't change the lower board's decision in order to give you the desired outcome, you may want to consider filing an appeal in federal court. Most appeals of BCMR decisions will go to the U.S. Court of Federal Claims (USCFC). There is a six-year statute of limitations for filing a case with the USCFC, and it is strictly adhered to. Unlike with the BCMR, federal court statutes of limitations can't be waived or extended under ordinary circumstances.

To be successful at the USCFC, you'll have to show that the BCMR's decision was arbitrary, capricious, an abuse of discretion, or didn't 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 USCFC would have to find that there was no reasonable way BCMR could have evaluated the facts of your case and issued the decision it did.

That 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, then this could be potentially reversible at the USCFC.

Do I Need a Lawyer for PEB Appeals?

You aren't required to have a representative in order to appeal a PEB finding that you disagree with, but it's typically a smart move. An experienced veterans' attorney will be able to gather the medical records needed to establish that you're unfit (or fit) for duty, as well as help you increase your disability rating (if that's your goal). Furthermore, your lawyer can make sure that you stay on top of deadlines—which become particularly important if you want to appeal to federal court. Consider contacting a local lawyer who has experience in this area and set up a consultation so that you have a better sense of what your options are.