If you can’t deploy, get ready to defend yourself
Thousands of servicemembers’ careers are on the line because they are currently not ready for deployment.
The Department of Defense recently released interim guidance in advance of a DOD instruction regarding nondeployable servicemembers. The guidance allows all military branches to initiate removal proceedings against personnel who have been — or are considered to be — unfit for deployment for more than 12 consecutive months. Pregnant or post-partum servicemembers and those wounded in combat are exempt from separation under this guidance.
Servicemembers can become nondeployable for a number of medical reasons, many of which are not their fault. They could have been injured in an accident on or off base. A medical condition may have turned up in a pre-deployment checkup that requires treatment before the servicemember can be deployed. The servicemember may have missed an immunization or might need dental work before deployment. Until the matter is satisfactorily resolved, the servicemember is considered nondeployable.
When a servicemember is nondeployable for more than 12 consecutive months, DOD’s new guidance allows the member’s military branch to initiate removal proceedings. This can be done two ways: either through an administrative discharge or a disability discharge. The severity of the servicemember’s medical condition will determine the type of discharge. Generally speaking, if the military opts to pursue a disability discharge, it’s because the servicemember’s condition has drawn the concern from a military doctor. The criteria for a disability discharge is:
The condition represents a medical risk to the health of the servicemember or the welfare of the other servicemembers.
The condition imposes unreasonable requirements on the military to maintain or protect the servicemember.
Any established duties that the servicemember must perform throughout the remainder of his or her military career.
If the servicemember’s medical condition does not rise to these standards, the military will opt to conduct an administrative discharge. A commanding officer will send a written notice to the servicemember of the pending discharge. The servicemember must respond to the notice, but has the option to include documents detailing a plan of action to make himself or herself a candidate for deployment. Once the commander receives the servicemember’s response, he or she will decide whether to pursue an administrative discharge. If the commander opts to continue the administrative discharge proceedings, he or she will either convene an Administrative Discharge Board or forward the matter on to the base commander for final review.
Whether the discharge is administrative or disability-related, the most important thing for servicemembers to remember is they have the right to appeal the results. If they are being discharged, they can never be reinstated into the military, but they can ask to be separated under better terms, which would grant them more post-service benefits. Those who received an administrative discharge can file an appeal to their military branch’s Discharge Review Board, while those who received a disability discharge can file an appeal to their branch’s Physical or Medical Disability Board of Review.
Finally, nondeployable servicemembers should consult a civilian attorney familiar with military law at the first sign that adverse action is being taken against them. Between the potential loss of salary, housing and benefits, servicemembers have a lot on the line. Having an attorney present at administrative or medical board hearings can help servicemembers present a strong defense.
DOD’s new policy encourages the military to discharge nondeployable servicemembers. It’s important for those servicemembers to prepare to defend themselves now to get the best possible outcome.
Greg T. Rinckey is a founding partner of the law firm Tully Rinckey PLLC. He served as a military intelligence officer in the U.S. Army and in the Army Judge Advocate General’s ( JAG) Corps.