Legal Memorandum: Filing a Disability Claim

Issue: Under military law, can an application for disability be filed simultaneously with an application or suit for reinstatement when reinstatement requires medical clearance?

There is virtually no law on this point whatsoever.  The only cases found which even touch on the question of filing a disability claim and an appeal during over-lapping time periods spoke only of it in passing.  None of the cases were prior to 1988.  However, from the general wording of what was said in such cases, it was clear that an application or suit for reinstatement could be dismissed without prejudice in order to pursue a disability claim.  Whitfield v. Department of the Air Force, 79 M.S.P.R. 651 (1998) (administrative judge dismissed the appeal without prejudice pending outcome of employee’s application for disability retirement); Mechelli v. U.S. Postal Serv., 80 M.S.P.R.. 283 (1998) (administrative judge dismissed appeal without prejudice because appellant said he had filed for disability retirement and if granted would withdraw appeal.)

Under the Rehabilitation Act, one must exhaust administrative remedies before appeal outside the regulatory system is allowed.  Thornburgh, 900 F.2d at 873.

Plaintiffs must prove by a preponderance of the evidence that they are entitled to a disability annuity.  Wagoner v. OPM, 7 M.S.P.B. 174, 175; 7 M.S.P.R. 277, 279 (1981).  This requires that a plaintiff show through medical evidence that he or she is unable, due to disease or injury, to render useful and efficient service in his or her position and that the condition in all probability will continue for at least a year.  5 U.S.C.A. Sec. 8337(a); 5 C.F.R. Sec. 831.1203.  The evidence considered consists of objective clinical […]