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Military & Veteran Lawyer > Blog > Resources > Administrative Review and Appellate Procedures for Army physical evaluation board and disability claims.

Administrative Review and Appellate Procedures for Army physical evaluation board and disability claims.

Once the Army Formal Physical Evaluation Board Has Occurred (AR 635-40):

(2) The PEB may change, modify, or correct its findings and recommendations at any time before the record of proceedings is delivered to the CG, USAPDA or commander, USAHRC. When such changes are made in previously announced findings or recommendations, the PEB will inform the Soldier (Soldier’s next-of-kin, counsel, or legal guardian), in writing, of the proposed change. The PEB will afford the Soldier the opportunity to accept or rebut the proposed change.

(3) The findings and recommendations of the formal PEB are recorded on DA Form 199–1. When the Soldierpersonally appears before the board, the DA Form 199–1 will be prepared immediately following the conclusion of the hearing and a copy provided to the Soldier and his or her counsel or representative. The Soldier will be afforded the opportunity to make an election at this time but may choose to take the full-time period for reaching a decision.

S.  Soldier’s Election. DA Form 199–1, section X, records the Soldier’s election options to formal findings and recommendations.

(1) The DA Form 199–1 and the letter of rebuttal must be received at the PEB within 10 days from the Soldier’sreceipt of the formal findings unless the president of the PEB approves a request for an extension of time. A request for an extension must be received within 10 days of the Soldier’s receipt of the DA Form 199–1. If the request for extension is denied, the original time frame remains applicable. A copy of the PEB’s decision on the request for extension will be sent to the Soldier’s counsel.

(2) If the Soldier’s statement of election or a request for an extension of time is not received within the required time, the PEB will deem that the Soldier has waived the right to an election. The proceedings will be forwarded to USAPDA for final disposition. The forwarding memorandum will document the circumstances resulting in the waiver of election. The PEB will forward a copy of the memorandum to the Soldier through the PEBLO.

(3) A Soldier who fails to make an election or to submit a statement of rebuttal to formal proceedings within the allotted time if he or she is in disagreement with the findings and recommendations, will forfeit the opportunity for USAPDA review of his or her case (see para 4–21t, below).

Letters of rebuttal to the findings and recommendation of formal proceedings, usually required within ten days.

Formal proceedings when the Soldier nonconcurs with the PEB findings and recommendations, submits a statement of rebuttal within the required time frame, and consideration of the rebuttal by the PEB does not result in a change to its findings and recommendation.

The review will be confined to the case records and proceedings and related evidence. The review will ensure that the following criteria have been satisfied.

(1) The Soldier received a full and fair hearing.

(2) The proceedings of the MEB and the PEB were conducted according to governing regulations.

(3) The findings and recommendations of the MEB and PEB were just, equitable, consistent with the facts, and in keeping with the provisions of law and regulations.

(4) Due consideration was given the facts and requests contained in any rebuttal to the PEB findings and recommendations submitted by, or for, the Soldier being evaluated.

(5) Records of the case are accurate and complete.

Based upon review of the PEB proceedings, USAPDA may take the following actions:

(1) Concur with the findings and recommendations of the PEB or make minor changes or corrections that do not affect the recommended disposition of the Soldier or lower the combined percentage rating.

(2) Return the case to the PEB for reconsideration, clarification, further investigation, a formal hearing, or other action when the case records show such action is in the best interests of the Soldier or the Army. A detailed explanation for the reasons for return of the case will be provided to the PEB.

(3) Issue revised findings providing for a change in disposition of the Soldier or change in the Soldier’s disability

(4) Refer the case to the APDAB. USAPDA, will take the following actions when modifying PEB findings and recommendations.

(1) Furnish the Soldier (next-of-kin or legal guardian) a copy of the revision by certified mail, return receipt PEBLO and to the Soldier’s counsel.

(2) Advise the Soldier (next-of-kin or legal guardian) that his or her election or rebuttal to the revision must be received by USAPDA within 10 days from the Soldier’s receipt of the revised findings unless a request for extension is received and approved within the same time frame.

(3) Return the case records to the PEB if the Soldier is eligible for and requests a formal hearing or if one is directed under the provisions of paragraph c(2), above. Processing will be according to paragraph 4–21.

(4) Record the revised findings on DA Form 199–2 (U.S. Army Physical Disability Agency (USAPDA) Revised

Physical Evaluation Board (PEB) Proceedings).

(1) After considering the Soldier’s rebuttal to the revised findings, USAPDA will make one of the following determinations:

(a) Accept the rebuttal; issue new findings and recommendations according to the rebuttal; and forward the case to USAHRC for final action.

(b) Concur with the original recommendations of the PEB; forward the case to USAHRC for final action.

(c) Adhere to the revised findings and recommendations and forward the case to APDAB.

(2) The USAPDA will inform the Soldier in writing of the results of its consideration of the rebuttal.

The Soldier records his or her election to revised findings on DA Form

199–2, section X. If the Soldier fails to submit an election within the allotted time, USAPDA will deem that the Soldier has waived his or her right to file a rebuttal and take final action on the case.

(1) The proceedings of general and MC officers found physically unfit will be forwarded to the ASD (HA) for review prior to disposition by USAHRC. This is not required if the finding is fit.

(2) If the case file is to be forwarded to APDAB for appeal action, USAPDA will prepare a cover letter explaining the reasons for referral and note that final decision is deferred to the APDAB. If the APDAB’s decision is unfit, and if the Soldier has requested COAD under chapter 6, APDAB will forward the file to the appropriate office for COAD review.

When APDAB changes the disposition of the Soldier or lowers the disability rating, USAPDA will—

(1) Notify the Soldier (or next-of-kin, counsel, or guardian) of the changes by certified mail, return receipt.

(2) Furnish a copy of the notification to the PEB and the PEBLO of the MTF concerned.

(3) Advise the Soldier that his or her concurrence or rebuttal to the findings by the APDAB must be received by USAPDA within 10 days of the receipt of the notification letter (based upon date of the certified return receipt) unless USAPDA has approved an extension of time. Failure to respond within the allotted time will result in waiver of right to file a rebuttal to the new findings.

The ADRRB is a component of the ACRB. The ADRRB reviews disability percentage ratings on request of a Soldier who was retired because of physical disability.

The ADRRB may notify or amend a fully executed retirement order of a Soldier based upon the following criteria:

(1) The original order was based on fraud or mistake of law.

(2) The Soldier was not granted a full and fair hearing when the Soldier had made timely demand for such a

(3) Substantial new evidence exists which, by due diligence, could not have been presented before disposition was accomplished, and the evidence would have warranted a higher percentage of disability if presented before disposition.

(1) The person concerned, legal representative, or any informed DA authority may request relief on the grounds set forth above.

(2) The request for relief must be filed within 5 years from the effective date of the disposition complaint.

(3) Request for relief is addressed to the ADRRB. No special form is required. However, the petition must state the reason for requesting relief and the relief desired.

(4) If the petition is based on evidence that is not on DA records, forward the evidence as an enclosure to the petition.

(5) The filing of a petition for relief will not affect the directed disposition unless the SA or authority acting for the SA so directs. If operation of the directed disposition is suspended by proper authority, the suspension does not extend the time limit within which an application for review must be submitted to a statutory board.

(1) The ADRRB will consider all petitions submitted according to the criteria of paragraph b, above.

(2) If the person concerned (or his or her legal representative) did not submit the petition, the ADRRB will give the retiree (or his or her legal representative) reasonable notice of the matter presented by the petition and the opportunity to submit a statement or other evidence in rebuttal.

(3) The Director, ACRB may act for the SA on petitions submitted if the recommendation of the ADRRB is (a) Deny relief, set aside the final disposition or placement on the TDRL directed in a case and direct further retirement proceedings.

(b) Direct such action as is needed to effect the relief requested or any other action thought proper.

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