There are precious few situations when the military must provide free legal representation to service members. Legal help is not guaranteed for most facing the Disability Evaluation System (DES). This is unfortunate. Medical disability retirement is a high-stakes, complicated legal process, and service members may unknowingly waive their rights or benefits without guidance. Military policy does provide some with access to legal counsel, but not everyone. And even for those who do have access, private counsel may still be the best course of action.
Why Use Government Legal Counsel?
For service members who can access a free military-provided attorney experienced in the Disability Evaluation System (DES), government counsel may be a solid option. It is free, already there (in some cases), and familiar with the military.
A government lawyer may be sufficient in your situation when:
Government counsel is familiar with DES
If the free legal counsel you have access to is experienced with disability boards specifically, they can be an excellent resource.
Government counsel is available at the stage(s) you need help with
Government counsel is unlikely to be available at every stage. But if you only need help with a particular stage, like the Physical Evaluation Board (PEB), the provided attorney may be adequate.
Your case is straightforward
Any number of factors can complicate an individual case, like duty status, administrative separation, misconduct allegations, rating issues, or the nature of the medical condition.
You are presumed LOD/do not require a LOD determination
For any injury or condition not presumed to have been incurred or aggravated in the service, a Line of Duty (LOD) determination is required to qualify for disability retirement. LODs are especially important for reservists and guardsmen. LODs can be an issue when misconduct allegations are involved. Certain medical conditions, like a preexisting or chronic condition, may also complicate LOD status.
Your medical documentation is thorough and uncontested
The medical record is the foundation of any disability retirement case. Your case should proceed relatively smoothly if you have a thoroughly documented history of your condition, diagnosis, and treatment from MTFs (military treatment facilities).
All Relevant Evidence Supports Your Desired Outcome
Commander statements and witness testimony should all support your claim and contribute to a cohesive, consistent narrative.
You Do not Require an Independent Medical Review
The NARSUM (narrative summary) must adequately reflect all potentially unfitting conditions conditions. Conditions missing from the NARSUM will not be considered in the MEB, and will not factor into your disability rating.
You Are Comfortable Navigating Administrative Processes and Managing Deadlines
Government counsel may be available at specific stages and key decision points, but they are not your case manager. Service members must be their own advocates in the process. Your assigned PEBLO (Physical Evaluation Board Liaison Officer) should also help you, but it is critical for you to be proactive and stay on top of any deadlines and requirements yourself.
We lay out the practical limitations government counsel face with disability retirement representation in our article: Disability Retirement: Why Hire a Private Attorney if the Military Lawyer Does the Same Thing for Free?
PEBLO vs. Attorney
Federal law does not guarantee a free lawyer, but it does provide access to a Physical Evaluation Board Liaison Officer (PEBLO). A PEBLO is mandated at the Physical Evaluation Board (PEB) stage. 10 U.S. Code § 1222.
The assistance PEBLOs provide is limited, however. Their precise role may differ between branches, but in general, their job is to move your case through the process. It is not to ensure you receive your desired outcome. PEBLOs are not advocates with a fiduciary duty to act in your best interests over any competing interests (like the military’s interests).
PEBLOs are not legal counsel. They are not permitted to give you any sort of legal or substantive advice—even if they may want to. DoDI 1332.18 Sec. 4.5.b.(15)(a).
Situations Where Private Counsel Is Highly Advised
Even when a free lawyer is available, a private attorney may be needed to secure the best possible outcome. A conversation with private counsel is especially valuable for cases with one or more complicating factors, such as:
- Missing or incorrect records
- Preexisting condition or chronic condition
- Line of Duty status uncertain
- Non-Service Medical Records
- Not being referred to DES
- Conflicting Testimony or Statements
- Discharge Status
- Delays in timeline
- Conflicting recommendations
- Missed deadlines, administrative errors, or other procedural missteps
- Independent Medical Review (IMR)
- Multiple conditions
- Disputed fitting determination(s)
- Case insufficient; key evidence lacking
- Difficulties managing the DES process on your own
Government or Private: Secure Legal Help ASAP
A free military-issued attorney may be both available and sufficient for some cases. This can change depending on the office’s current staffing, case load, and policy. Most cases benefit from early and continued legal counsel, rather than counsel limited to a particular point in the process.
Attorney investment is best spent preventing issues, rather than repairing issues. Contact legal counsel ASAP. If you are considering a private attorney, reach out now. If using government counsel, call your component’s legal office and ask if a disability retirement attorney is available to represent you. The following information is worth confirming:
Confirm any limitations on their representation: How much time do they have for you? Will they advise you before, during, and after key decision points? Will they represent you in hearings?
Ask if you will have continuity in legal counsel, or if you will be handed off depending on staffing availability.
How experienced is your attorney with disability retirement? If you are handed off to another attorney, will they also be experienced with DES? If not, will a more senior attorney be supervising?
Can they advise on other legal issues related to your case but not strictly under the DES umbrella, like divorce, misconduct allegations, administrative separations?
When does their representation end? Will they help you through an appeal or Board for Correction of Military Records (BCMR) if necessary?
Case outcomes depend heavily upon compiling the strongest possible record, well before the PEB. But every DES stage involves critical decisions. Some may seem routine and simply administrative in nature, but they are of legal consequence. Whether privately hired or military issued, legal counsel is critical. Early attorney intervention can help ensure that you receive the retirement compensation you are entitled to.
The law firm of Tully Rinckey represents service members across all branches of the armed forces in disability retirement and benefits matters. To discuss a potential case, please call 8885294543 to schedule a consultation, or schedule a consultation online.
Heather Tenney, Esq., LL.M. is a Partner in Tully Rinckey PLLC’s military law, federal employment, and national security law practice groups. She currently serves as the primary attorney for consultation in these areas. Heather brought her skills as an advocate and negotiator to Tully Rinckey after honorably serving with the US Army’s JAG Corps, and the results speak for themselves. At the firm, she focuses on military law; federal employment, EEO and discrimination litigation; disciplinary investigation and MSPB litigation, disability retirement, and national security clearance representation. Heather’s representation in national security and security clearance cases range from high-level military officers to covert operation officers of the CIA, NRO, FBI, DIA and a range of other intelligence agencies. Heather currently serves as Treasurer for the National Security Lawyers Association (NSLA).
