H.R. 6574 (112th): Servicemember Mental Health Review Act

112th Congress, 2011–2013. Text as of Oct 12, 2012 (Introduced).

Status & Summary | PDF | Source: GPO

I

112th CONGRESS

2d Session

H. R. 6574

IN THE HOUSE OF REPRESENTATIVES

October 12, 2012

(for himself, Mr. Rooney, Mr. Denham, and Ms. Pingree of Maine) introduced the following bill; which was referred to the Committee on Armed Services

A BILL

To amend title 10, United States Code, to require a 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.

1.

Short title

This Act may be cited as the Servicemember Mental Health Review Act.

2.

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)

The establishment of a Mental Health Discharge Board of Review to review the separation of veterans who are separated on the basis of a personality or adjustment disorder is warranted 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.

Department of Defense review of military separation on basis of a mental condition not amounting to disability

(a)

Review required

Chapter 79 of title 10, United States Code, is amended by inserting after section 1554a the following new section:

1554b.

Review of separation on basis of mental condition not amounting to disability

(a)

In general

(1)

The Secretary of Defense shall oversee the establishment within the Office of the Secretary of each military department a board of review to review determinations previously made that covered individuals separated from the armed forces have a mental condition not amounting to disability. The board of each military department shall be known as the Mental Health Discharge Board of Review.

(2)

Each Mental Health Discharge Board of Review shall consist of not less than five members appointed by the Secretary. 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, shall be appointed to the board.

(3)

The Secretary of a military department shall equip the Mental Health Discharge Board of Review established for that department with adequate administrative and behavioral health support staff.

(b)

Covered individuals

For purposes of this section, covered individuals are members and former members of the armed forces who have been separated from the armed forces since September 11, 2001, because 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.

(c)

Notification of availability of review

(1)

The Secretary of Defense shall ensure, to the greatest extent practicable, that each covered individual receives oral and written notification of the right of the covered individual to the review by the appropriate Mental Health Discharge Board of Review of the separation of the covered individual from the armed forces.

(2)

The Secretary of the military department with jurisdiction over the armed force in which a covered individual served immediately before separation shall be responsible for providing to the covered individual the notification required by this subsection. The Secretary of Defense shall monitor compliance with this notification requirement and promptly notify Congress of any failures to comply.

(3)

If a covered individual does not receive notification under this subsection, the covered individual or a surviving spouse, next of kin, or legal representative of the covered individual may file a request for the Mental Health Discharge Board of Review to review the separation of the covered individual from the armed forces.

(d)

Legal counsel

The notification required by subsection (c) shall—

(1)

inform the covered individual of the right to obtain private counsel to represent the covered individual before the Mental Health Discharge Board of Review; and

(2)

include a list of organizations that may provide counsel at no cost to the covered individual.

(e)

Review

(1)

For each covered individual, the Mental Health Discharge Board of Review shall review—

(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 regulations.

(2)

The review by the Mental Health Discharge 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 Mental Health Discharge Board of Review. 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.

(3)

If the Mental Health Discharge Board of Review proposes, upon its own motion, to conduct a review under paragraph (1) with respect to a covered individual, the Mental Health Discharge Board of Review 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.

(4)

After the Mental Health Discharge Board of Review has completed the review under this subsection with respect to the separation of a covered individual, the board must 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 new evidence can be presented that would address the issues raised in the board’s statement of reasons.

(f)

Authorized recommendations

The Mental Health Discharge Board of Review may, as a result of its findings in a review under subsection (e), recommend to the Secretary of the military department concerned the following (as applicable) with respect to a covered individual:

(1)

No negative recharacterization of the separation of such individual or modification of the disability rating previously assigned such individual.

(2)

The recharacterization of the separation of such individual to retirement for disability.

(3)

The recharacterization of the separation of such individual—

(A)

to separation for disability with entitlement to receive severance pay;

(B)

to separation upon expiration of term of service; or

(C)

to separation for convenience of the Government.

(4)

The issuance of a new disability rating for such individual.

(g)

Compliance with administrative procedure act transparency requirement

If the Mental Health Discharge Board of Review does not recommend under subsection (f)(2) a recharacterization of the separation of a covered individual to retirement for disability, the Mental Health Discharge Board of Review shall include a brief statement of the reasons why such a recommendation was not made. The recommendation and, if applicable, the brief statement shall be mailed to the covered individual or a surviving spouse, next of kin, or legal representative of the covered individual.

(h)

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 Mental Health Discharge Board of Review under subsection (f). 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 reduced 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.

(i)

Regulations

(1)

This section shall be carried out in accordance with regulations prescribed by the Secretary of Defense.

(2)

The regulations under paragraph (1) shall specify reasonable deadlines for the performance of reviews required by this section.

.

(b)

Clerical amendment

The table of sections at the beginning of such chapter is amended by inserting after the item relating to section 1554a the following new item:

1554b. Review of separation on basis of mental condition not amounting to disability.

.

(c)

Implementation

Not later than 90 days after the date of the enactment of this Act, the Secretary of Defense shall require the establishment of the Mental Health Discharge Boards of Review required under section 1554b of title 10, United States Code, as added by subsection (a) and prescribe the regulations required by subsection (i) of such section.