II 

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. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 


tkelley on DSK3SPTVN1PROD with BILLS
2 

•S 628 IS

1 SECTION 1. SHORT TITLE. 

2 This Act may be cited as the ‘‘Servicemember Mental 

3 Health Review Act’’. 

4 SEC. 2. FINDINGS. 

5 Congress makes the following findings: 

6 (1) Since September 11, 2001, approximately 

7 30,000 veterans have been separated from the 

8 Armed Forces on the basis of a personality disorder 

9 or adjustment disorder. 

10 (2) Nearly all veterans who are separated on 

11 the basis of a personality or adjustment disorder are 

12 prohibited from accessing service-connected disability 

13 compensation, disability severance pay, and disability 

14 retirement pay. 

15 (3) Many veterans who are separated on the 

16 basis of a personality or adjustment disorder are un17 able to find employment because of the ‘‘personality 

18 disorder’’ or ‘‘adjustment disorder’’ label on their 

19 Certificate of Release or Discharge from Active 

20 Duty. 

21 (4) The Government Accountability Office has 

22 found that the regulatory compliance of the Depart23 ment of Defense in separating members of the 

24 Armed Forces on the basis of a personality or ad25 justment disorder was as low as 40 percent between 

26 2001 and 2007. 


tkelley on DSK3SPTVN1PROD with BILLS
3 

•S 628 IS

1 (5) Expansion of the authority of the Physical 

2 Disability Board of Review to include review of the 

3 separation of members of the Armed Forces on the 

4 basis of a mental condition not amounting to dis5 ability, including separation on the basis of a per6 sonality or adjustment disorder, is warranted in 

7 order to ensure that any veteran wrongly separated 

8 on such basis will have the ability to access disability 

9 benefits and employment opportunities available to 

10 veterans. 

11 SEC. 3. REVIEW BY PHYSICAL DISABILITY BOARD OF RE12 VIEW OF MILITARY SEPARATION ON BASIS OF 

13 A MENTAL CONDITION NOT AMOUNTING TO 

14 DISABILITY. 

15 (a) MEMBERS ENTITLED TO REVIEW BY PHYSICAL

16 DISABILITY BOARD OF REVIEW.—Section 1554a of title 

17 10, United States Code, is amended— 

18 (1) in subsection (a)(1), by striking ‘‘disability 

19 determinations of covered individuals by Physical 

20 Evaluation Boards’’ and inserting ‘‘disability and 

21 separation determinations regarding certain mem22 bers and former members of the armed forces de23 scribed in subsection (b)’’; and 

24 (2) by striking subsection (b) and inserting the 

25 following new subsection: 


tkelley on DSK3SPTVN1PROD with BILLS
4 

•S 628 IS

1 ‘‘(b) COVERED INDIVIDUALS.—For purposes of this 

2 section, covered individuals are members and former mem3 bers of the armed forces who— 

4 ‘‘(1) during the period beginning on September 

5 11, 2001, and ending on December 31, 2014, are 

6 separated from the armed forces due to unfitness for 

7 duty because of a medical condition with a disability 

8 rating of 20 percent disabled or less and are found 

9 to be not eligible for retirement; or 

10 ‘‘(2) before December 31, 2014, are separated 

11 from the armed forces due of unfitness for duty be12 cause of a mental condition not amounting to dis13 ability, including separation on the basis of a per14 sonality disorder or adjustment disorder.’’. 

15 (b) NATURE AND SCOPE OF REVIEW.—Such section 

16 is further amended— 

17 (1) by redesignating subsections (d), (e), and 

18 (f) as subsections (e), (f), and (g), respectively; and 

19 (2) by inserting after subsection (c) the fol20 lowing new subsection (d): 

21 ‘‘(d) REVIEW OF SEPARATIONS DUE TO UNFITNESS

22 FOR DUTY BECAUSE OF A MENTAL CONDITION NOT

23 AMOUNTING TO DISABILITY.—(1) Upon the request of a 

24 covered individual described in paragraph (2) of sub25 section (b), or a surviving spouse, next of kin, or legal 


tkelley on DSK3SPTVN1PROD with BILLS
5 

•S 628 IS

1 representative of a covered individual described in such 

2 paragraph, the Physical Disability Board of Review shall 

3 review the findings and decisions of the Physical Evalua4 tion Board with respect to such covered individual. In ad5 dition, the Physical Disability Board of Review may re6 view, upon its own motion, the findings and decisions of 

7 the Physical Evaluation Board with respect to a covered 

8 individual described in such paragraph. 

9 ‘‘(2) Whenever a review is conducted under para10 graph (1), the members of the Physical Disability Board 

11 of Review shall include at least one licensed psychologist 

12 and one licensed psychiatrist who has not had any fidu13 ciary responsibility to the Department of Defense since 

14 December 31, 2001. 

15 ‘‘(3) In conducting the review under paragraph (1), 

16 the Physical Disability Board of Review shall consider— 

17 ‘‘(A) the findings of the psychologist or psychia18 trist of the Department of Defense who diagnosed 

19 the mental condition; 

20 ‘‘(B) the findings and decisions of the separa21 tion authority with respect to the covered individual; 

22 and 

23 ‘‘(C) whether the separation authority correctly 

24 followed the process for separation as set forth in 


tkelley on DSK3SPTVN1PROD with BILLS
6 

•S 628 IS

1 law, including Department of Defense regulations, 

2 directives, and policies. 

3 ‘‘(4) The review by the Physical Disability Board of 

4 Review under paragraph (1) shall be based on the records 

5 of the Department of Defense and the Department of Vet6 erans Affairs and such other evidence as may be presented 

7 to the Board. The Board shall consider any and all evi8 dence to be considered, including private mental health 

9 records submitted by the covered individual in support of 

10 the claim. 

11 ‘‘(5) If the Physical Disability Board of Review pro12 poses, upon its own motion, to conduct a review under 

13 paragraph (1) with respect to a covered individual, the 

14 Board shall notify the covered individual, or a surviving 

15 spouse, next of kin, or legal representative of the covered 

16 individual, of the proposed review and obtain the consent 

17 of the covered individual or a surviving spouse, next of 

18 kin, or legal representative of the covered individual before 

19 proceeding with the review. 

20 ‘‘(6) After the Physical Disability Board of Review 

21 has completed the review under this subsection with re22 spect to the separation of a covered individual, the Board 

23 shall provide the claimant with a statement of reasons con24 cerning the Board’s decision. The covered individual has 


tkelley on DSK3SPTVN1PROD with BILLS
7 

•S 628 IS

1 the right to raise with the Board a motion for reconsider2 ation if— 

3 ‘‘(A) new evidence can be presented that would 

4 address the issues raised in the Board’s statement 

5 of reasons; or 

6 ‘‘(B) the Board has made a plain error in mak7 ing its recommendation.’’. 

8 (c) CORRECTION OF MILITARY RECORDS.—Sub9 section (f) of such section, as redesignated by subsection 

10 (b)(1), is amended to read as follows: 

11 ‘‘(f) CORRECTION OF MILITARY RECORDS.—(1) The 

12 Secretary of the military department concerned shall cor13 rect the military records of a covered individual in accord14 ance with the recommendation made by the Physical Dis15 ability Board of Review under subsection (e) unless the 

16 Secretary determines that the Board has made a clearly 

17 erroneous recommendation. Any such correction shall be 

18 made effective as of the date of the separation of the cov19 ered individual. 

20 ‘‘(2) In the case of a covered individual previously 

21 separated with a lump-sum or other payment of back pay 

22 and allowances at separation, the amount of pay or other 

23 monetary benefits to which such individual would be enti24 tled based on the individual’s military record as corrected 

25 shall be adjusted to take into account receipt of such 


tkelley on DSK3SPTVN1PROD with BILLS
8 

•S 628 IS

1 lump-sum or other payment in such manner as the Sec2 retary of the military department concerned considers ap3 propriate. 

4 ‘‘(3) If the Physical Disability Board of Review 

5 makes a recommendation not to correct the military 

6 records of a covered individual, the action taken on the 

7 report of the Physical Evaluation Board to which such rec8 ommendation relates shall be treated as final as of the 

9 date of such action.’’. 

10 (d) CONFORMING AMENDMENTS.—Such section is 

11 further amended— 

12 (1) in subsection (c)— 

13 (A) by inserting after ‘‘REVIEW’’ the fol14 lowing: ‘‘OF SEPARATIONS DUE TO UNFITNESS

15 FOR DUTY BECAUSE OF MEDICAL CONDITION

16 WITH A LOW DISABILITY RATING’’; and 

17 (B) in paragraph (1)— 

18 (i) by inserting ‘‘described in para19 graph (1) of subsection (b)’’ after ‘‘a cov20 ered individual’’ the first place it appears; 

21 (ii) by inserting ‘‘described in such 

22 paragraph’’ after ‘‘a covered individual’’ 

23 the second place it appears; and 

24 (iii) by striking the second sentence 

25 and inserting the following new sentence: 


tkelley on DSK3SPTVN1PROD with BILLS
9 

•S 628 IS

1 ‘‘In addition, the Physical Disability Board 

2 of Review may review, upon its own mo3 tion, the findings and decisions of the 

4 Physical Evaluation Board with respect to 

5 a covered individual described in such 

6 paragraph.’’; and 

7 (2) in subsection (e), as redesignated by sub8 section (b)(1), by striking ‘‘under subsection (c)’’ 

9 and inserting ‘‘conducted under subsection (c) or 

10 (d)’’. 

11 (e) NOTIFICATION OF NEW AVAILABILITY OF RE12 VIEW.— 

13 (1) NOTIFICATION REQUIREMENT.—In the case 

14 of individuals described in subsection (b)(2) of sec15 tion 1554a of title 10, United States Code, as 

16 amended by subsection (a), who have been separated 

17 from the Armed Forces during the period beginning 

18 on September 11, 2001, and ending on the date of 

19 the enactment of this Act or who are separated after 

20 that date, the Secretary of Defense shall ensure, to 

21 the greatest extent practicable, that such individuals 

22 receive oral and written notification of their right to 

23 a review of their separation from the Armed Forces 

24 under such section 1554a. 


tkelley on DSK3SPTVN1PROD with BILLS
10 

•S 628 IS

1 (2) COMPLIANCE.—The Secretary of the mili2 tary department with jurisdiction over the Armed 

3 Force in which the individual served immediately be4 fore separation shall be responsible for providing to 

5 the individual the notification required by paragraph 

6 (1). The Secretary of Defense shall monitor compli7 ance with this notification requirement and promptly 

8 notify Congress of any failures to comply. 

9 (3) LEGAL COUNSEL.—The notification re10 quired by paragraph (1) shall— 

11 (A) inform the individual of the right to 

12 obtain legal or non-legal counsel to represent 

13 the individual before the Physical Disability 

14 Board of Review; and 

15 (B) include a list of organizations that 

16 may provide such counsel at no cost to the indi17 vidual. 

18 (f) CLERICAL AMENDMENTS.— 

19 (1) SECTION HEADING.—The heading of such 

20 section is amended to read as follows: 


tkelley on DSK3SPTVN1PROD with BILLS
11 

•S 628 IS

1 ‘‘§ 1554a. Physical Disability Board of Review: review 

2 of separations with disability rating of 20 

3 percent or less and separations on basis 

4 of mental condition not amounting to dis5 ability’’. 

6 (2) TABLE OF SECTIONS.—The table of sections 

7 at the beginning of chapter 79 of such title is 

8 amended by striking the item relating to section 

9 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.’’. 

Æ 


tkelley on DSK3SPTVN1PROD with BILLS