Class Action Lawsuit Challenges U.S. Navy’s ‘Properly Referred Policy’ for Determining Fitness for Active Service

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A proposed class action lawsuit has been filed against Acting Secretary of the United States Navy Thomas W. Harker and the federal government over what a Marine Corps veteran alleges were unfair parameters used by the Navy to determine a person’s fitness to continue active service. 

The 30-page lawsuit aims to challenge the “Properly Referred Policy” used by the Navy to determine whether a sailor or Marine was unfit to continue active duty service and qualified to receive disability payments. According to the complaint, the policy, which was enforced from September 12, 2016 until June 11, 2018, was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, and without observance of procedure required by law,” and has caused potentially more than 10,000 service members to be improperly denied medical retirement. 

“As a result of the Properly Referred Policy, [the plaintiff] was denied the opportunity to qualify for military medical retirement because the PEB wrongly refused to fully consider each of his medical conditions in determining whether he was unfit for continued military service,” the lawsuit alleges in summary. 

More specifically, the lawsuit filed in the District of Columbia says the “Properly Referred Policy” has led Navy Physical Evaluation Board (PEB) members to consider only conditions submitted to the board in a manner stipulated by the policy. Per the case, the policy barred members of the U.S. Navy and Marine Corps from having “all of their potentially unfitting conditions” evaluated by the PEB, which the suit states has been decried for years as “wrong,” “contrary to both law and regulation” and an attempt to restrict the rights of wounded, ill or injured soldiers. Other arguments have been made that the policy has unlawfully narrowed the scope of information required to be considered when reviewing wounded warrior cases, according to the complaint. 

Chapter 61 of Title 10 of the U.S. Code sets the process through which the United States Armed Forces may discharge a disabled service member, the lawsuit begins. Under the chapter, the secretaries within the Department of Defense (DoD), including the Secretary of the Navy, are authorized to discharge service members determined to be “unfit” to perform the duties of their office, grade, rank or rating due to physical or mental disability, according to the case. Although the DoD is responsible for implementing the overarching standards and procedures for physical and mental disability evaluations, known as the Disability Evaluation System (DES), the Navy, the lawsuit says, has issued its own regulations that detail the procedures it uses to evaluate and adjudicate disability cases.

The lawsuit claims up to 10,000 sailors or Marines were negatively impacted in the period in which the Properly Referred Policy was implemented and enforced by the Director of the Secretary of the Navy Council of Review Boards (SECNAVCORB). According to the complaint, the policy unlawfully directed the PEB to consider only those conditions referred by a medical evaluation board (MEB) in accordance with the policy, while conditions presented to the MEB via other means were not to be considered. As a direct result, the physical evaluation board did not consider all medical conditions that were documented in the plaintiff and proposed class members’ service treatment records, medical evaluation report, narrative summary, VA Form 21-0819 or an appropriate medical addendum but not referred to the PEB in compliance with the Properly Referred Policy, the lawsuit says. Per the case, those service members were improperly denied medical retirement, which grants former service members the rights to monthly disability payments, medical care and commissary privileges. 

With regard to the plaintiff, the case says the man suffered procedural harm when a PEB failed to consider medical evidence beyond those conditions it deemed to have been “properly referred,” in particular the man’s back spondyloarthropathy and sleep apnea. The lawsuit claims the Navy’s DES process failed to consider injuries the plaintiff suffered to his shoulders, wrists, fingers, knees, ankles, hips and back in addition to those considered to have been “properly referred.” 

The plaintiff, who served active duty in the Marine Corps from February 2013 until January 2018 when he was honorably discharged due to disability, looks to represent all veterans of the United States Navy and Marine Corp who claimed conditions in Section II of the joint DoD/VA claim form (VA Form 21-0819) that were not listed on the NAVMED Form 6100/1 dated and signed by the convening authority and who did not receive a medical retirement through the IDES. 

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