113 S628 IS: Servicemember Mental Health Review Act
U.S. Senate
2013-03-20
text/xml
EN
Pursuant to Title 17 Section 105 of the United States Code, this file is not subject to copyright protection and is in the public domain.
1.This Act may be cited as the
Servicemember Mental Health Review
Act
.
2.Congress makes the following
findings:
(1)Since September 11, 2001, approximately
30,000 veterans have been separated from the Armed Forces on the basis of a
personality disorder or adjustment disorder.
(2)Nearly all veterans who are separated on
the basis of a personality or adjustment disorder are prohibited from accessing
service-connected disability compensation, disability severance pay, and
disability retirement pay.
(3)Many veterans who are separated on the
basis of a personality or adjustment disorder are unable to find employment
because of the personality disorder or adjustment
disorder label on their Certificate of Release or Discharge from Active
Duty.
(4)The Government Accountability Office has
found that the regulatory compliance of the Department of Defense in separating
members of the Armed Forces on the basis of a personality or adjustment
disorder was as low as 40 percent between 2001 and 2007.
(5)Expansion of the authority of the Physical
Disability Board of Review to include review of the separation of members of
the Armed Forces on the basis of a mental condition not amounting to
disability, including separation on the basis of a personality or adjustment
disorder, is warranted in order to ensure that any veteran wrongly separated on
such basis will have the ability to access disability benefits and employment
opportunities available to veterans.
3.Review by
Physical Disability Board of Review of military separation on basis of a mental
condition not amounting to disability
(a)Members entitled
to review by Physical Disability Board of ReviewSection 1554a of
title 10, United States Code, is amended—
(1)in subsection
(a)(1), by striking disability determinations of covered individuals by
Physical Evaluation Boards
and inserting disability and
separation determinations regarding certain members and former members of the
armed forces described in subsection (b)
; and
(2)by striking
subsection (b) and inserting the following new subsection:
(b)For purposes of
this section, covered individuals are members and former members of the armed
forces who—
(1)during the period beginning on September
11, 2001, and ending on December 31, 2014, are separated from the armed forces
due to unfitness for duty because of a medical condition with a disability
rating of 20 percent disabled or less and are found to be not eligible for
retirement; or
(2)before December 31, 2014, are separated
from the armed forces due of unfitness for duty because of a mental condition
not amounting to disability, including separation on the basis of a personality
disorder or adjustment
disorder.
.
(b)Nature and scope
of reviewSuch section is further amended—
(1)by redesignating
subsections (d), (e), and (f) as subsections (e), (f), and (g), respectively;
and
(2)by inserting after
subsection (c) the following new subsection (d):
(d)Review of
separations due to unfitness for duty because of a mental condition not
amounting to disability(1)Upon the request of a covered individual
described in paragraph (2) of subsection (b), or a surviving spouse, next of
kin, or legal representative of a covered individual described in such
paragraph, the Physical Disability Board of Review shall review the findings
and decisions of the Physical Evaluation Board with respect to such covered
individual. In addition, the Physical Disability Board of Review may review,
upon its own motion, the findings and decisions of the Physical Evaluation
Board with respect to a covered individual described in such paragraph.
(2)Whenever a review is conducted under
paragraph (1), the members of the Physical Disability Board of Review shall
include at least one licensed psychologist and one licensed psychiatrist who
has not had any fiduciary responsibility to the Department of Defense since
December 31, 2001.
(3)In conducting the review under paragraph
(1), the Physical Disability Board of Review shall consider—
(A)the findings of the psychologist or
psychiatrist of the Department of Defense who diagnosed the mental
condition;
(B)the findings and decisions of the
separation authority with respect to the covered individual; and
(C)whether the separation authority
correctly followed the process for separation as set forth in law, including
Department of Defense regulations, directives, and policies.
(4)The review by the Physical Disability Board
of Review under paragraph (1) shall be based on the records of the Department
of Defense and the Department of Veterans Affairs and such other evidence as
may be presented to the Board. The Board shall consider any and all evidence to
be considered, including private mental health records submitted by the covered
individual in support of the claim.
(5)If the Physical Disability Board of Review
proposes, upon its own motion, to conduct a review under paragraph (1) with
respect to a covered individual, the Board 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.
(6)After the Physical Disability Board of
Review has completed the review under this subsection with respect to the
separation of a covered individual, the Board shall provide the claimant with a
statement of reasons concerning the Board’s decision. The covered individual
has the right to raise with the Board a motion for reconsideration if—
(A)new evidence can be presented that
would address the issues raised in the Board’s statement of reasons; or
(B)the Board has made a plain error in making
its
recommendation.
.
(c)Correction of
military recordsSubsection
(f) of such section, as redesignated by subsection (b)(1), is amended to read
as follows:
(f)Correction of
military records(1)The Secretary of the military department
concerned shall correct the military records of a covered individual in
accordance with the recommendation made by the Physical Disability Board of
Review under subsection (e) unless the Secretary determines that the Board has
made a clearly erroneous recommendation. Any such correction shall be made
effective as of the date of the separation of the covered individual.
(2)In the case of a covered individual
previously separated 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 individual would be entitled based on the individual’s military record as
corrected shall be adjusted to take into account receipt of such lump-sum or
other payment in such manner as the Secretary of the military department
concerned 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.
.
(d)Such section is further amended—
(1)in subsection
(c)—
(A)by inserting after
Review
the following:
of separations due to
unfitness for duty because of medical condition with a low disability
rating
; and
(B)in paragraph
(1)—
(i)by
inserting described in paragraph (1) of subsection (b)
after
a covered individual
the first place it appears;
(ii)by inserting described in such
paragraph
after a covered individual
the second place it
appears; and
(iii)by
striking the second sentence and inserting the following new sentence:
In addition, the Physical Disability Board of Review may review, upon
its own motion, the findings and decisions of the Physical Evaluation Board
with respect to a covered individual described in such paragraph.
;
and
(2)in subsection (e),
as redesignated by subsection (b)(1), by striking under subsection
(c)
and inserting conducted under subsection (c) or
(d)
.
(e)Notification of
new availability of review
(1)In the case of
individuals described in subsection (b)(2) of section 1554a of title 10, United
States Code, as amended by subsection (a), who have been separated from the
Armed Forces during the period beginning on September 11, 2001, and ending on
the date of the enactment of this Act or who are separated after that date, the
Secretary of Defense shall ensure, to the greatest extent practicable, that
such individuals receive oral and written notification of their right to a
review of their separation from the Armed Forces under such section
1554a.
(2)The Secretary of the military department
with jurisdiction over the Armed Force in which the individual served
immediately before separation shall be responsible for providing to the
individual the notification required by paragraph (1). The Secretary of Defense
shall monitor compliance with this notification requirement and promptly notify
Congress of any failures to comply.
(3)The notification
required by paragraph (1) shall—
(A)inform the individual of the right to
obtain legal or non-legal counsel to represent the individual before the
Physical Disability Board of Review; and
(B)include a list of
organizations that may provide such counsel at no cost to the
individual.
(f)
(1)The heading of such
section is amended to read as follows:
1554a.Physical
Disability Board of Review: review of separations with disability rating of 20
percent or less and separations on basis of mental condition not amounting to
disability
.
(2)The table of sections at the beginning of chapter 79 of
such title is amended by striking the item relating to section 1554a and
inserting the following new item:
1554a. Physical Disability Board of
Review: review of separations with disability rating of 20 percent or less and
separations on basis of mental condition not amounting to
disability.
.