```

[Congressional Bills 113th Congress]
[From the U.S. Government Publishing Office]
[S. 628 Introduced in Senate (IS)]

113th CONGRESS
  1st Session
                                 S. 628

 To amend title 10, United States Code, to extend the duration of the 
Physical Disability Board of Review and to the expand the authority of 
 such Board to 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.

_______________________________________________________________________

                   IN THE SENATE OF THE UNITED STATES

                             March 20, 2013

  Mr. Tester (for himself, Mr. Baucus, Mr. Begich, and Ms. Klobuchar) 
introduced the following bill; which was read twice and referred to the 
                      Committee on Armed Services

_______________________________________________________________________

                                 A BILL

 
 To amend title 10, United States Code, to extend the duration of the 
Physical Disability Board of Review and to the expand the authority of 
 such Board to 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.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

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

SEC. 2. FINDINGS.

    Congress makes the following 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) Expansion of the authority of the Physical Disability 
        Board of Review to include 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, is warranted in order to 
        ensure that any veteran wrongly separated on such basis will 
        have the ability to access disability benefits and employment 
        opportunities available to veterans.

SEC. 3. REVIEW BY PHYSICAL DISABILITY BOARD OF REVIEW OF MILITARY 
              SEPARATION ON BASIS OF A MENTAL CONDITION NOT AMOUNTING 
              TO DISABILITY.

    (a) Members Entitled to Review by Physical Disability Board of 
Review.--Section 1554a of title 10, United States Code, is amended--
            (1) in subsection (a)(1), by striking ``disability 
        determinations of covered individuals by Physical Evaluation 
        Boards'' and inserting ``disability and separation 
        determinations regarding certain members and former members of 
        the armed forces described in subsection (b)''; and
            (2) by striking subsection (b) and inserting the following 
        new subsection:
    ``(b) Covered Individuals.--For purposes of this section, covered 
individuals are members and former members of the armed forces who--
            ``(1) during the period beginning on September 11, 2001, 
        and ending on December 31, 2014, are separated from the armed 
        forces due to unfitness for duty because of a medical condition 
        with a disability rating of 20 percent disabled or less and are 
        found to be not eligible for retirement; or
            ``(2) before December 31, 2014, are separated from the 
        armed forces due 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.''.
    (b) Nature and Scope of Review.--Such section is further amended--
            (1) by redesignating subsections (d), (e), and (f) as 
        subsections (e), (f), and (g), respectively; and
            (2) by inserting after subsection (c) the following new 
        subsection (d):
    ``(d) Review of Separations Due to Unfitness for Duty Because of a 
Mental Condition Not Amounting to Disability.--(1) Upon the request of 
a covered individual described in paragraph (2) of subsection (b), or a 
surviving spouse, next of kin, or legal representative of a covered 
individual described in such paragraph, the Physical Disability Board 
of Review shall review the findings and decisions of the Physical 
Evaluation Board with respect to such covered individual. In addition, 
the Physical Disability Board of Review may review, upon its own 
motion, the findings and decisions of the Physical Evaluation Board 
with respect to a covered individual described in such paragraph.
    ``(2) Whenever a review is conducted under paragraph (1), the 
members of the Physical Disability Board of Review shall include 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.
    ``(3) In conducting the review under paragraph (1), the Physical 
Disability Board of Review shall consider--
            ``(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 
        Department of Defense regulations, directives, and policies.
    ``(4) The review by the Physical Disability 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 Board. 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.
    ``(5) If the Physical Disability Board of Review proposes, upon its 
own motion, to conduct a review under paragraph (1) with respect to a 
covered individual, the Board 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.
    ``(6) After the Physical Disability Board of Review has completed 
the review under this subsection with respect to the separation of a 
covered individual, the Board shall 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--
            ``(A) new evidence can be presented that would address the 
        issues raised in the Board's statement of reasons; or
            ``(B) the Board has made a plain error in making its 
        recommendation.''.
    (c) Correction of Military Records.--Subsection (f) of such 
section, as redesignated by subsection (b)(1), is amended to read as 
follows:
    ``(f) 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 
Physical Disability Board of Review under subsection (e) unless the 
Secretary determines that the Board has made a clearly erroneous 
recommendation. 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 adjusted 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.
    ``(3) If the Physical Disability Board of Review makes a 
recommendation not to correct the military records of a covered 
individual, the action taken on the report of the Physical Evaluation 
Board to which such recommendation relates shall be treated as final as 
of the date of such action.''.
    (d) Conforming Amendments.--Such section is further amended--
            (1) in subsection (c)--
                    (A) by inserting after ``Review'' the following: 
                ``of Separations Due to Unfitness for Duty Because of 
                Medical Condition With a Low Disability Rating''; and
                    (B) in paragraph (1)--
                            (i) by inserting ``described in paragraph 
                        (1) of subsection (b)'' after ``a covered 
                        individual'' the first place it appears;
                            (ii) by inserting ``described in such 
                        paragraph'' after ``a covered individual'' the 
                        second place it appears; and
                            (iii) by striking the second sentence and 
                        inserting the following new sentence: ``In 
                        addition, the Physical Disability Board of 
                        Review may review, upon its own motion, the 
                        findings and decisions of the Physical 
                        Evaluation Board with respect to a covered 
                        individual described in such paragraph.''; and
            (2) in subsection (e), as redesignated by subsection 
        (b)(1), by striking ``under subsection (c)'' and inserting 
        ``conducted under subsection (c) or (d)''.
    (e) Notification of New Availability of Review.--
            (1) Notification requirement.--In the case of individuals 
        described in subsection (b)(2) of section 1554a of title 10, 
        United States Code, as amended by subsection (a), who have been 
        separated from the Armed Forces during the period beginning on 
        September 11, 2001, and ending on the date of the enactment of 
        this Act or who are separated after that date, the Secretary of 
        Defense shall ensure, to the greatest extent practicable, that 
        such individuals receive oral and written notification of their 
        right to a review of their separation from the Armed Forces 
        under such section 1554a.
            (2) Compliance.--The Secretary of the military department 
        with jurisdiction over the Armed Force in which the individual 
        served immediately before separation shall be responsible for 
        providing to the individual the notification required by 
        paragraph (1). The Secretary of Defense shall monitor 
        compliance with this notification requirement and promptly 
        notify Congress of any failures to comply.
            (3) Legal counsel.--The notification required by paragraph 
        (1) shall--
                    (A) inform the individual of the right to obtain 
                legal or non-legal counsel to represent the individual 
                before the Physical Disability Board of Review; and
                    (B) include a list of organizations that may 
                provide such counsel at no cost to the individual.
    (f) Clerical Amendments.--
            (1) Section heading.--The heading of such section is 
        amended to read as follows:
``Sec. 1554a. Physical Disability Board of Review: review of 
              separations with disability rating of 20 percent or less 
              and separations on basis of mental condition not 
              amounting to disability''.
            (2) Table of sections.--The table of sections at the 
        beginning of chapter 79 of such title is amended by striking 
        the item relating to section 1554a and inserting the following 
        new item:

``1554a. Physical Disability Board of Review: review of separations 
                            with disability rating of 20 percent or 
                            less and separations on basis of mental 
                            condition not amounting to disability.''.
                                 <all>
```