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Soldiers evaluated without being told rules, lawyers say

c Clatchy Newspapers

TACOMA - The Army is rethinking the way it evaluates wounded and injured soldiers who are no longer fit for duty because of post-traumatic stress disorder and certain other conditions.

But a board at Fort Lewis continues to move soldiers with those medical problems through the Army's disability assessment system, even though the new guidelines have yet to be published, according to attorneys who represent soldiers.

In effect, soldiers must argue their case without knowing the rules by which the board will size up their injuries, say the three Army lawyers who represent soldiers before the Fort Lewis Physical Evaluation Board.

Attorneys from the Office of Soldiers' Legal Counsel stated their objections in a March 19 letter to the evaluation board president, Col. John O'Sullivan.

"A soldier's statutory right to a full and fair hearing is fundamentally violated if they are not provided the standards upon which they are to be judged in advance of the hearing," they wrote.

Meanwhile, in a letter sent after visiting Fort Lewis several weeks ago, the Army's top civilian lawyer raised concerns about a possible "Wal-Mart greeter test" in determining whether soldiers are well enough to be denied benefits.

The Physical Evaluation Board decides whether wounded and injured soldiers from across the western United States should receive retired pay and military benefits such as health-care coverage and base privileges, or one-time severance payments with no benefits, or no compensation at all.

The three attorneys who wrote the March 19 letter are Maj. Damon D. Gulick, Lt. Col. Ronda W. Sutton and Steven E. Engle, a civilian who is the chief of office.

They said that until the new rules are distributed, the soldiers and their lawyers "do not know what evidence to gather, marshal and present that will be most relevant" to the board's decision-making in each case.

A board official and an Army Human Resources Command spokesman declined to comment Friday.

The Army's Physical Disability Agency is in the midst of a rewrite of the guidelines for rating the severity of injuries such as PTSD, lost range of motion in joints such as the neck and shoulders, sleep apnea and other conditions.

The revisions are apparently in response to complaints that have come to light in the wake of the Walter Reed Army Medical Center scandal last month. Since then, soldiers and their advocates have raised questions about the fairness of the Army's system for determining whether wounded and injured soldiers are fit for duty, and if they're not, how to compensate them for their disabilities. Fort Lewis is home to one of three Physical Evaluation Boards in the Army. The others are at Walter Reed in Washington, D.C., and at Fort Sam Houston in San Antonio. A fourth, mobile board is occasionally convened to address case backlogs around the country.

How the board works

Each Physical Evaluation Board is made up of a senior line officer, a doctor and a personnel expert. If they find a soldier is not fit to return to duty, they decide if the disability is related to his or her service in the Army, and if it is, the board sets a percentage rating to the disability.

Soldiers whose disabilities are rated at 30 percent or more generally are entitled to be medically retired. They receive a percentage of their base pay each month and continue to receive benefits including health-care coverage and base privileges.

Soldiers who are rated at less than 30 percent disabled generally receive a severance payment equal to two months pay for every year of service, up to 12 years. They're released from service with no further benefits.

In some cases, the boards find that a soldier's disability is due to a condition that existed before he or she joined the Army, in which case the soldier is entitled to no compensation.

Despite dramatic increases in the number of wounded and injured soldiers, the number receiving medical retirements from Physical Evaluation Boards had dropped - from 642 in 2001 to 209 in 2005, according to recent reports in the Army Times.

Soldiers have complained that the boards unfairly discount the effects of injuries, often releasing them from the Army with modest severance payments, no military medical coverage and a disability that makes it difficult to find work as a civilian.

The Army's top civilian lawyer, Benedict S. Cohen, earlier this month wrote a memo to senior Army officials to report several complaints he heard from Fort Lewis staff "closely involved in the administration of the PEB process."

The 'greeter' test

During a Fort Lewis visit several weeks ago, Cohen reported, staff members alleged that the Physical Evaluation Board "routinely" misapplies Army regulations and Department of Defense instructions "to evade reaching the 30 percent disability threshold that triggers soldier eligibility" for medical retirement and benefits.

"It was claimed that PEBs employed a 'Wal-Mart greeter' test, whereby if an injured soldier could function as a Wal-Mart greeter he or she would receive a rating of 0 percent disability, as opposed to the outcome mandated" by Army and Defense Department regulations, Cohen wrote.

"The staff cited as evidence of misapplication of relevant standards the fact that despite the onset of the GWOT (global war on terrorism) and subsequent dramatic increase in the number and severity of injuries, findings of disability had held steady at 9 percent and more recently had even fallen below that average," he wrote.

Cohen sent his memo to the assistant Secretary of the Army for manpower and reserve affairs, the Army Inspector General and the Army Judge Advocate General. He wrote that he had no way of knowing whether the allegations were true, but that, "In my view, this information may warrant further assessment."

An official with the Fort Lewis Physical Evaluation Board said Friday he could not respond to inquiries about cases before the board. He referred a reporter to the public affairs officer with the Army Human Resources Command in Alexandria, Va., Lt. Col. Kevin Arata.

Arata did not return telephone and e-mail inquiries, but instructed the Fort Lewis Physical Evaluation Board official not to speak with The News Tribune, the official said.

The lawyers who represent soldiers before the PEB wrote that it was unclear how the board would account for the new guidelines for PTSD and other conditions in the cases it is currently hearing while the rewrite is under way. The board hears up to four or five cases each work day.

It was unclear whether the new guidelines would be retroactive, or if soldiers would have the chance to argue their case in another hearing.

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