Although there are many laws now that protect individuals with disabilities, the armed services are not required to follow them. Instead, the military is exempt from the mandates of non-discrimination imposed by the civil rights laws on the federal government. According to the Department of Defense, the military discriminates against people with epilepsy because it wants military people to be available for worldwide service at any time and with few limitations. Assignments may be made to areas where medical facilities are nonexistent or inadequately equipped to treat particular disorders. Although there are provisions for retaining members who develop a medical condition which prohibits them from being assigned to such areas, the size of this population must be kept as small as possible to prevent an inability to deploy personnel in the event of a military emergency.
Prior to 1982, any history of seizures after age five was a complete bar to admission into any branch of the U.S. Armed Forces. In 1982, the Department of Defense revised its regulations governing admission into the armed services. The regulations now state that an applicant will be considered on an individual basis if there has been no seizure recurrence since age five, or the applicant has been seizure-free without medication for the five years immediately prior to the application. The Air Force's medical standards for flying training, however, are more stringent. These disqualify anyone with any history of paroxysmal convulsive disorders, except that seizures associated with febrile illness before five years of age may be acceptable if the electroencephalogram is normal.
The requirement that the applicant be off medication is strictly applied. The military's reason for the 'no medication' rule is their concern about the availability of medication in other countries, coupled with the requirement of worldwide service, including areas where medical facilities are nonexistent or inadequately equipped to treat particular disorders.
People who have been denied entrance into the armed services based on their history of epilepsy may wish to protest their disqualification by writing to their elected officials as they may be in the best position to effect change.
The military may be more lenient about medication use once someone is already in the military and develops a condition such as epilepsy. Regulations state that an individual will be separated upon developing convulsive disorders, "...when seizures are not adequately controlled (complete freedom from seizure of any type) by standard drugs which are relatively nontoxic and which do not require frequent clinical and laboratory re-evaluation." There is no guidance as to how long an individual should be evaluated prior to making a determination about whether his or her seizures can be successfully controlled on medications. Usually the Medical Review Board (MRB) does the evaluation and makes recommendations as to what types of duties the individual should be assigned to or whether he or she should be retained by the military at all. Each branch of the military has different options for the MRB to choose from in making their recommendations.
People are assessed on a case-by-case basis. An enlistee has no right to be retained. Practically speaking, it appears that although the regulations no longer state that development of a seizure disorder is automatic grounds for separation, a person with a seizure disorder is unlikely to stay in the military.
Upgrading a Discharge
When individuals are discharged from the military for medical reasons (usually a "disability separation" or "medical condition expected prior to service"- EPTS), their records do not always reflect the reason. How you are discharged can affect your veteran's benefits in the future; therefore, it is important for your record to reflect a medical discharge correctly. There are two forums which can upgrade a military discharge. They are the Discharge Review Boards (DRB) and the Boards for Correction of Military Records (BCMR). Each military service has one. An applicant must apply to a DRB if the discharge was within 15 years. A personal appearance hearing is guaranteed. Appeals from denial of full relief at a DRB can then be presented to a BCMR.
The National Veterans Legal Services Project (NVLSP) recommends the following process to people who wish to upgrade their discharge from the military. First, apply to the DRB for review of the circumstances under which one was discharged. The time limit for making this request is 15 years from the date of discharge and it is recommended that an individual request a "personal appearance hearing" at which he or she can present testimony. Normally, such a hearing will be granted within one year of the date of the request. At the DRB hearing, it is important for the applicant to show, using appropriate supporting documents, that there is an explanation for the incidents that led to the discharge. If you believe that your epilepsy was a factor in your being discharged, it will be important for you to present evidence to support that belief. In addition, it would be helpful for you to present an expert witness on epilepsy, or the statement of an expert, to support this conclusion.
Changing an Administrative Discharge
The DRB can change the reason and type of an administrative discharge; however, it cannot change an administrative discharge to a discharge for disability. To change the nature of your discharge from an administrative to medical, you will have to apply to a BCMR. Your chances of getting the change from this board are improved if you have been successful before the DRB. There is a 3-year statute of limitations in applying to the BCMR; however, this limitation may be waived if it is in "the interest of justice." A personal appearance before the BCMR is rarely permitted and the board typically takes from six months to 15 months to decide an application.
It is important to note that the burden is on the applicant to prove the discharge to be either illegal or unfair. The boards tend to view discharges historically, trying to decide whether a discharge issued years ago would be issued under today's more liberal standards, or whether it is still fair to continue the stigma of a bad discharge. In deciding whether a discharge was improper or unfair, the Boards are obliged to review the applicant's military records. However, military records usually contain only information to support the original discharge action. Therefore, the applicant has to present his version of the case, the arguments as to why the discharge was improper or inequitable and any other evidence that supports his version of events. Evidence may be submitted at any time after the applications to the boards are filed.
Any Veteran's Affairs Office can provide you or your client with the forms necessary to begin the review process or you can get them from the Department of Defense over the internet. NVLSP sells a comprehensive manual on Military Discharge Upgrading. Their address and phone number are: 2001 S. Street, N.W., Suite 610, Washington, D.C. 20009, (202) 265-8305. You can also visit NVLSP's site can also be located over the internet.