Judge Orders Navy to Review the Medical Discharges of at Least 3,700 Sailors and Marines

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A gavel lays on the Uniform Code of Military Justice inside the 28th Bomb Wing courtroom at Ellsworth Air Force Base, S.D., July 17, 2018. (Airman 1st Class Nicolas Z. Erwin/U.S. Air Force photo)
A gavel lays on the Uniform Code of Military Justice inside the 28th Bomb Wing courtroom at Ellsworth Air Force Base, S.D., July 17, 2018. (Airman 1st Class Nicolas Z. Erwin/U.S. Air Force photo)

More than 3,770 sailors and Marines who were medically discharged between Sept. 12, 2016, and June 11, 2018, may be eligible for medical retirement from the Defense Department under a federal judge's ruling last week in Washington, D.C.

U.S. District Court Judge Royce Lamberth ruled Sept. 29 that a policy used by the Navy to help expedite its disability evaluation system was unlawful and those who were medically discharged, rather than retired, may be eligible for a review of their cases.

While service members who are discharged from the military for medical disabilities have access to Veterans Affairs health care and disability compensation, those who are medically retired receive military retirement pay as well as disability compensation and have access to many Defense Department benefits, including the Tricare health program and installation facilities such as commissaries and exchanges, fitness centers and recreation.

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During two years covered by the review, the Navy implemented a policy that required Physical Evaluation Boards (PEBs) to consider only medical conditions specifically listed by a Medical Evaluation Board when weighing whether a service member could remain in the military, be medically discharged or medically retired.

PEBs were barred from considering any other medical conditions that weren't "properly referred," as the policy, which was rescinded in 2018, was known.

Lamberth ruled that the policy "was unlawful in its effect on the physical evaluation board decisions" on the plaintiffs in the class-action suit. He subsequently vacated their PEB decisions and said the cases must be sent back for reconsideration by the service.

The case was filed in February 2021 by Oscar Torres, a Marine who served from August 2007 until his medical discharge in January 2018. During his time in service, Torres sustained injuries to his back, shoulder, wrist, fingers, knees, ankles and hips, and he was diagnosed with an inflammatory rheumatic disease. He also suffered from sleep apnea.

The Navy Medical Evaluation Board referred the back condition and sleep apnea to the PEB and concluded that the rest of the conditions did not make him unfit for duty. Based on the conditions that were "properly referred," the PEB found Torres unfit for duty for his back issue at 10% and fit for sleep apnea.

Falling short of the 30% disability decision required to receive medical retirement -- a designation that provides lifelong pay, health care and access to many Department of Defense facilities -- Torres was given a lump-sum disability severance payment.

He argued in his suit that the Navy's policy to not consider all medical conditions was unsupported by evidence, arbitrary and contrary to law.

Lamberth agreed, first in ruling the case a class action last October and in his summary judgment last week.

"The physical evaluation board decisions for each class member are hereby VACATED and SET ASIDE. This Court REMANDS to the Secretary of the Navy," Lamberth wrote in his decision.

The win means that any sailor or Marine medically discharged from Sept. 12, 2016, to June 11, 2018, under the policy will have their case reviewed. The agreement between the plaintiffs and the Navy remains sealed, but previous settlements involving discharged military personnel have required the services to notify who is eligible.

The plaintiffs were represented by the National Veterans Legal Services Program and Perkins Coie LLP, which have established an email address -- properlyreferred@nvlsp.org -- for veterans who believe they may qualify for a review.

"We are thrilled that the Court has invalidated the unjust 'Properly Referred' policy. We are hopeful that the Court's ruling will bring long overdue relief to the thousands of Sailors and Marines who were wrongfully denied disability retirement as a result of this illegal policy," Esther Leibfarth, a senior staff attorney at NVLSP, said in a statement Thursday.

The Navy Judge Advocate General Corps did not respond to a request for comment by publication.

In the past several years, veterans legal organizations have fought to have a number of military discharges reviewed or overturned, including more than 51,000 other-than-honorable discharges for misbehavior that may have been related to service-connected mental health conditions.

-- Patricia Kime can be reached at Patricia.Kime@military.com. Follow her on Twitter @patriciakime

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