[Congressional Record Volume 169, Number 120 (Thursday, July 13, 2023)]
[Senate]
[Pages S2637-S2638]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SA 495. Mr. SCOTT of Florida submitted an amendment intended to be
proposed by him to the bill S. 2226, to authorize appropriations for
fiscal year 2024 for military activities of the Department of Defense,
for military construction, and for defense activities of the Department
of Energy, to prescribe military personnel strengths for such fiscal
year, and for other purposes; which was ordered to lie on the table; as
follows:
At the end of subtitle B of title VII, add the following:
SEC. 715. ACCOUNTABILITY FOR CERTAIN MEMBERS OF THE ARMED
FORCES DURING THE INTEGRATED DISABILITY
EVALUATION SYSTEM.
(a) Findings.--Congress finds the following:
(1) Members of the Armed Forces are the brave men and women
who voluntarily put themselves in harm's way, while fighting
the enemies of freedom around the world so that all citizens
of the United States and countless citizens of other nations
can enjoy the blessings of liberty in peace. We owe those
members not only a debt of gratitude, but our willingness to
ensure every single member receives excellent health care and
just treatment in the medical separation process when they've
become ill or injured in the line of duty. This is critically
important, not only for the present state of readiness in the
Armed Forces, but for potential recruitment of future
warfighters as elucidated by President George Washington when
he stated, ``The willingness with which our young people are
likely to serve in any war, no matter how justified, shall be
directly proportional to how they perceive veterans of early
wars were treated and appreciated by our nation.''.
(2) Wounded Warriors remain members of an Armed Force under
the jurisdiction of the Secretary of a military department
and determinations regarding their physical ability is the
responsibility of the chain of command of the member, rather
than the personnel within or under the direction of the
Defense Health Agency. That responsibility through the
jurisdiction of the military chain of command is effective
during the entirety of the process of the Integrated
Disability Evaluation System of the Department of Defense, or
successor system, instead of vesting for practical purposes
only at the end of such process.
(3) Section 1214 of title 10, United States Code,
guarantees that ``[n]o member of the armed forces may be
retired or separated for physical disability without a full
and fair hearing if he demands it.''.
(4) Section 1216(b) of such title grants the Secretary
concerned ``all powers, functions, and duties incident to the
determination'' of ``fitness for active duty of any member of
an armed force under his jurisdiction.''.
(5) Sections 7013(b), 8013(b), and 9013(b) of such title
assigns responsibility for and grants ``the authority
necessary to conduct'' the administration of the ``morale and
welfare of personnel'' to the Secretary of the Army, the
Secretary of the Navy, and the Secretary of the Air Force
respectively.
(b) Declaration of Policy Regarding Accountability for
Wounded Warriors.--It is the policy of Congress that--
(1) determinations of fitness for duty or physical
capability to perform a military occupational specialty of a
member of the Armed Forces under the jurisdiction of the
Secretary of a military department are the responsibility of
such Secretary;
(2) determinations of fitness for a Wounded Warrior may be
assessed by medical professionals outside the military
department of the Wounded Warrior and may be influenced by
precedents across other entities of the Department of
Defense, including the Defense Health Agency, but ultimately,
such determination remains a decision of the Secretary of the
military department concerned;
(3) the full authority for a determination described in
paragraph (1) or (2) resides in the military chain of command
and not the chain of responsibility of the Defense Health
Agency; and
(4) at no point during the medical evaluation of a Wounded
Warrior shall the Wounded Warrior be denied the protections,
privileges, or right to due process afforded under the laws,
regulations, or other applicable guidance of the military
department of the Wounded Warrior.
(c) Clarification of Responsibilities Regarding the
Integrated Disability Evaluation System.--Subsection (h) of
section 1073c of title 10, United States Code, is amended to
read as follows:
[[Page S2638]]
``(h) Authorities Reserved to Secretaries of the Military
Departments.--(1) Notwithstanding the responsibilities and
authorities of the Director of the Defense Health Agency with
respect to the administration of military medical treatment
facilities under this section, the Secretary of each military
department shall maintain authority over and responsibility
for any member of the armed forces under the jurisdiction of
the military department concerned while the member is being
considered by a medical evaluation board or during any other
part of the implementation of the Integrated Disability
Evaluation System of the Department of Defense, or successor
system.
``(2) Responsibility of the Secretary of a military
department under paragraph (1) shall include the following:
``(A) Responsibility for administering the morale and
welfare of each member of the armed forces under the
jurisdiction of such Secretary.
``(B) Responsibility for determinations of fitness for
active duty of each such member.
``(C) Complete operational and administrative control of
each such member at every stage of the implementation of the
Integrated Disability Evaluation System, or successor system,
from the beginning of the medical evaluation board to the
conclusion of the physical evaluation board, including the
authority to pause for a reasonable amount of time or
completely withdraw the member from such system if the
military commander with jurisdiction over the member finds
that any policies, procedures, regulations, or other related
guidance has not been followed in the case of the member.''.
(d) Opportunity for Due Process Hearing in the Military
Chain of Command.--
(1) In general.--Not later than 90 days after the date of
the enactment of this Act, the Secretary of Defense shall
update the policies and procedures applicable to the
implementation of the Integrated Disability Evaluation System
of the Department of Defense, or successor system, to ensure
that appeals made by Wounded Warriors under the jurisdiction
of the Secretary concerned include (if the member demands it)
a full and fair hearing on such determination, to be
conducted by the Secretary concerned.
(2) Characterization of appeal.--An appeal made under
paragraph (1) is separate from and in addition to any
appellate options available to a Wounded Warrior under the
Integrated Disability Evaluation System of the Department of
Defense, or successor system.
(3) Timely manner.--
(A) In general.--Upon request by Wounded Warrior, the
military commander with jurisdiction over the Wounded Warrior
shall process an appeal under paragraph (1).
(B) Adjudication.--Not later than 90 days after the
initiation by a Wounded Warrior of an appeal under paragraph
(1) the military commander with jurisdiction over the Wounded
Warrior, and every echelon of command all the way up to the
general court-martial convening authority if the commander
denies the appeal, shall complete adjudication of the appeal.
(e) Briefing.--Not later than February 1, 2024, the
Secretary of Defense shall provide to the appropriate
congressional committees a briefing on the status of the
implementation of this section and the amendments made by
this section.
(f) Definitions.--In this section:
(1) Appropriate congressional committees.--The term
``appropriate congressional committees'' means--
(A) the Committee on Armed Services of the Senate; and
(B) the Committee on Armed Services of the House of
Representatives.
(2) Secretary concerned.--The term ``Secretary concerned''
has the meaning given that term in section 101 of title 10,
United States Code.
(3) Wounded warrior.--The term ``Wounded Warrior'' means a
member of the Armed Forces being processed for potential
medical separation at any point in the Integrated Disability
Evaluation System of the Department of Defense, or successor
system.
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