4-F – Disabled and Unfit for Military Service

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Can you be drafted in the military if you have a disability?

What constitutes a disability that would make you ineligible to be drafted?

By Matthew W. Dietz

As a father of a 19-year-old in a volatile time where a tweetstorm of thoughtless insults can turn into a firestorm of bombs, I worry about the future of my son and all young men of his generation. Currently, the United States Armed Forces is an all-volunteer military force, and there has not been a draft since 1973. However, reactivating the draft is a possibility in the event of a need to supplement the military — all men between 18 and 25 are potentially subject to miliarmy-pic2tary conscription or “the draft.”  In the event that Congress and the President authorize a mobilization to increase the number of active troops, a lottery would be held based on birthdays which determines the order of men to be drafted.  Those with low lottery numbers receive examination orders and are ordered to report for a physical mental and moral evaluation at a Military Entrance Processing Station (MEPS) to determine whether they are fit for military service.  Once the person is notified of the results, a registrant will be given ten days to file a claim for exemption.

Disability is a reason for an exemption. The United States military requires that all enlisted and commissioned personnel be ready for “active duty.” This means one must at all times be physically, emotionally, and psychologically ready to serve – to the military’s standards of fitness.  The military has standards for fitness to be inducted into the military, and the purposes of the standards are to ensure that inductees are:

(1) Free of contagious diseases that probably will endanger the health of other personnel.

(2) Free of medical conditions or physical defects that may require excessive time lost from duty for necessary treatment or hospitalization, or probably will result in separation from the Service for medical unfitness.

(3) Medically capable of satisfactorily completing required training.

(4) Medically adaptable to the military environment without the necessity of geographical area limitations.

(5) Medically capable of performing duties without aggravation of existing physical defects or medical conditions.

What Types of Disabilities are Disqualifying?

The goal of the military preparedness is to develop a fighting force without the need of special accommodation for disability. In as much as a person would need an accommodation, including, but not limited to, specialized equipment, medication, or additional services, may potentially lead to a danger to the unit.  As such, the military lists the conditions and impairments that are disqualifying.

Physical Disabilities – There is a listing of a plethora of physical disabilities that are potentially army-pic1disqualifying for a person that is conscripted.  This includes issues regarding functioning of bodily systems and physical deformities.

  • Blindness or low vision that does not correct with glasses
  • Deafness of hard of hearing, even with the use of a hearing aid
  • History of Bariatric Surgery
  • Anything that interferes with the proper wearing of a military uniform or equipment
    • Limitation of motion
    • HIV or AIDS
    • Anaphylaxis due to stinging insects or systemic allergic reactions to food
    • Diabetes
    • Rheumatologic conditions
    • Migraine headaches or trauma as a result of head injuries
    • Chronic insomnia

Learning, Psychiatric, and Behavioral Disabilities –

The military is currently very selective with regards to allowing persons with learning or other mental disabilities to be inducted into the military. Part of becoming an effective soldier is to learn to suppress one’s individual needs for the needs of the unit.  Thus neurodiversity is not valued as much as conformance to the operation as a unit that can follow orders.   As such, many cognitive, learning, or developmental conditions would be disqualifying:

Attention Deficit Hyperactivity Disorder (ADHD) – A person may be disqualified from military duty if

  • The applicant has not required an Individualized Education Program army-pic6or work accommodations since the age of 14.
  • There is no history of comorbid mental disorders.
  • The applicant has never taken more than a single daily dosage of medication or has not been prescribed medication for this condition for more than 24 cumulative months after the age of 14, and prior to enlistment.
  • During periods off of medication after the age of 14, the applicant has been able to maintain at least a 2.0 grade point average without accommodations.
  • Documentation from the applicant’s prescribing provider that continued medication is not required for acceptable occupational or work performance.
  • Applicant is required to enter service and pass Service-specific training periods with no prescribed medication for 14 months.

In 2011, according to the Centers for Disease Control, approximately 11% of children 4-17 years of age (6.4 million) have been diagnosed with ADHD. Apparently, dependence on stimulants for ADHD is disqualifying.  These medications include Strattera, Adderall, Ritalin, Vyvanse and many other medications.  Currently, one in three children with ADHD take medications for this disability.

History of learning disorders, including but not limited to dyslexia – a person will be disqualified UNLESS applicants demonstrated passing academic and employment performance without utilization of academic and or work accommodations at any time since age 14.

Autism – Pervasive developmental disorders) including Asperger Syndrome, autistic spectrum disorders, and pervasive developmental disorder-not otherwise specified.

Psychosis – Current or history of disorders with psychotic features such as schizophrenic disorders, delusional disorders, bipolar disorders or other and unspecified psychoses.

army-pic9Depression – History of depressive disorders, including but not limited to major depression, dysthymic disorder, and cyclothymic disorder requiring outpatient care for longer than 12 months by a physician or other mental health professional, or any inpatient treatment in a hospital or residential facility.

Mood Disorders – Depressive disorder not otherwise specified, or unspecified mood disorder

  • Outpatient care was required for longer than 24 months (cumulative) by a physician or other mental health professional.
  • The applicant has not been stable without treatment for the past 36 continuous months.
  • The applicant required any inpatient treatment in a hospital or residential facility.

Adjustment disorders – History of a single adjustment disorder within the previous 3 months, or recurrent episodes of adjustment disorders.

Behavior Disorders – Current or history of disturbance of conduct, impulse control, oppositional defiant, other behavior disorders, or personality disorder.

  • History (demonstrated by repeated inability to maintain reasonable adjustment in school, with employers or fellow workers, or other social groups), interview, or psychological testing revealing that the degree of immaturity, instability, of personality inadequacy, impulsiveness, or dependency shall likely interfere with adjustment in the Military Services.
  • Recurrent encounters with law enforcement agencies (excluding minor traffic violations) or antisocial behaviors are tangible evidence of impaired capacity to adapt to military service.

Encopresis (fecal incontinence) after 13th birthday.

Eating Disorders – History of anorexia nervosa or bulimia, and other unspecified disorders of eating occurring after the 13th birthday.

Stuttering – Any current receptive or expressive language disorder, including but not limited to any speech impediment or stammering and stuttering of such a degree as to significantly interfere with production of speech or the ability to repeat commands.

Suicidal behaviors – History of suicidal behavior, including gesture(s) or attempt(s) or history of self-mutilation or injury used as a way of dealing with life and emotions.

PTSD or OCD – History of obsessive-compulsive disorder or post-traumatic stress disorder

Anxiety – History of anxiety disorders, panic disorder, agoraphobia, social phobia or other acute reactions to stress UNLESS:

  • The applicant did not require any treatment in an inpatient or residential facility.
  • Outpatient care was not required for longer than 12 months (cumulative) by a physician or other mental health professional.
  • The applicant has not required treatment (including medication) for the past 24 continuous months.
  • The applicant has been stable without loss of time from normal pursuits for repeated periods even if of brief duration; and without symptoms or behavior of a repeated nature that impaired social, school, or work efficiency for the past 24 continuous months.

Current or history of dissociative, conversion, or factitious disorders, depersonalization (300.6), hypochondriasis, somatoform disorders, or pain disorder related to psychological factorsarmy-pic10

Current or history of psychosexual conditions, including but not limited to transsexualism, exhibitionism, transvestism, voyeurism,and other paraphilias. Whenever I think of this factor, I cannot help but remember Maxwell Q. Kinger from M.A.S.H.

 Medical Marijuana is Disqualifying!

Current use of Marijuana, or any of alcohol dependence, drug dependence, alcohol abuse, or other drug abuse is disqualifying.  A history of such use may be disqualifying as well.

Documentation Required to Establish Disability

As part of my practice, when a person requires an accommodation, I am a stickler for developing a history of disability and receipt of accommodations, and then when subsequent accommodations are needed, the proof will be at hand.  In the same way, this information is essential in establishing ineligibility for the draft.  It is good practice to obtain all copies of Individual Education Plans, reports of disability by doctors, and prior requests for accommodations, and provisions of accommodation, as well as a medication log.  All of this information should be kept in a binder as well as electronically.

But, what happens if you want to serve your country?

Rest assured, you can play a role to serve your country. If you believe that you are still able to serve, you can always seek a waiver of disability.   But even with a disability, you can work in a civilian role in the military.  A federal mandate states that all U.S. Military bases must have 10% of their civilian workforce composed of individuals with disabilities. The U.S. Navy boasts that they have been ranked number five in the nation among all employers—private sector corporations included—who employ individuals with disabilities.

References

Department of Defense – Medical Standards for Appointment, Enlistment, or Induction in the Military Services – Policy No. 6130.03  – http://dtic.mil/whs/directives/corres/pdf/613003p.pdf

Army Regulation 40–501, Medical Services – Standards of Medical Fitness – http://www.apd.army.mil/pdffiles/r40_501.pdf

The Legal Profession’s Mental Health Issue is a Suppressed Epidemic

Lawyers drinking shots with one man looking disturbed
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One of the most time-worn quotes in describing the law school experience, is the law school dean telling incoming fist-year law students, “Look to your left, look to your right, because one of you won’t be here by the end of the year.” For me, it involved treating law school like a full time job, which included spending most Saturday nights in front of my books and a computer listening to Saturday Night with the 70’s on the radio, and knowing that my classmates were doing the same thing. When we did get together, it usually involved turning our minds off and having a couple of beers. After law school, I got a job that had 2,000 billable hours and weekend and night “face time” as an expectation – but, of course, not a requirement.

As a new lawyer, the emphasis is to focus on career development, and the life tenet of “Work Hard, Play Hard” is taken to heart. A balanced life is only considered for later in life, and wellness is not good for advancement to partner. Twenty years later, balance is not achieved, and anxiety as well as management of that anxiety is a way of life.

I am not alone.

A February 2016 report funded by the Hazelden Betty Ford Foundation and the American Bar Association Commission on Lawyer Assistance Programs, published in the Journal of Addiction Medicine, showed that 61% of lawyers reported anxiety in their careers. Out of the approximately 13,000 lawyers across the United States surveyman with head on bar with cigarette and whiskey glassed, lawyers reported having anxiety in their career 61.1%, followed by depression (45.7%), social anxiety (16.1%), attention deficit hyperactivity disorder (12.5%), panic disorder (8.0%), and bipolar disorder (2.4%). In addition, 11.5% of the participants reported suicidal thoughts at some point during their career, 2.9% reported self-injurious behaviors, and 0.7% reported at least 1 prior suicide attempt.

However, in Florida, and elsewhere in the country, mental health issues affect young lawyers disproportionately. In 2014, the Young Lawyers Division (YLD) of Florida did a membership survey that revealed 63% of respondents have difficulty with balancing work and family, and 39% endure high stress. Following the suicide of a Tampa lawyer who drove to the top of the Sunshine Skyway Bridge and jumped off the bridge, the YLD bar began a “Health and Wellness Month” in May 2015 to start a conversation on health and wellness. In doing so, the YLD stated:

Most importantly, this conversation must endure beyond the month of May. We, as a profession, must continue to pursue wellness for ourselves so that we can be strong advocates for our clients, and work to support our colleagues who may be struggling. Our clients are depending on it.

However, the solution by the YLD was to begin a conversation and a hashtag to the problem, which does not prevent alcoholism, anxiety, depression and drug abuse. For young lawyers, a balanced life is for later consideration, and wellness is not good for advancement to partner.

According to an April 2015 Article in the ABA Student Lawyer, Shedding the Stigma of Mental Illness, depression rates for persons entering law school are at 8-9%, and then the depression rate skyrockets to 27% after the first semester, 34% after two semesters, and 40% after three years.

The February 2016 ABA study demonstrated that lawyers have a rate of problem drinking that was more than three times higher than the general population, depression and anxiety rates twice that of the general population, and substance abuse and addiction substantially higher than the general population. Not surprisingly, the rates were significantly higher for those attorneys who are starting their careers:

Attorneys in the first 10 years of their practice now experiencing the highest rates of problematic [alcohol] use (28.9%), followed by attorneys practicing for 11 to 20 years (20.6%), and continuing to decrease slightly from 21 years or more. These percentages correspond with our findings regarding position within a law firm, with junior associates having the highest rates of problematic use, followed by senior associates, junior partners, and senior partners. This trend is further reinforced by the fact that of the respondents who stated that they believe their alcohol use has been a problem (23%), the majority (44%) indicated that the problem began within the first 15 years of practice, as opposed to those who indicated the problem started before law school (26.7%) or after more than 15 years in the profession (14.5%). Taken together, it is reasonable to surmise from these findings that being in the early stages of one’s legal career is strongly correlated with a high risk of developing an alcohol use disorder.

The results with regards to mental health disorders, the study determined that 61% of the attorney respondents reported concerns with anxiety at some point in their career and 46% reported concerns with depression. These Mental Health concerns often co-occur with alcohol use disorders.

As an Institution, the Legal Profession in Florida Stigmatizes Persons with Mental Health Disabilities.

The conclusion drawn by the February study was as follows:

Greater education aimed at prevention is also indicated, along with public awareness campaigns within the profession designed to overcome the pervasive stigma surrounding substance use disorders and mental health concerns.

Reducing stigma for mental health issues includes encouraging mental health treatment and counseling as well as promoting techniques for wellness for law students and young attorneys. While this is common sense, and would promote a healthier profession and reduce attrition of talented lawyers in the profession, the historical stigma regarding mental health prevents common sense to prevail.

Bottle and gavelMost notably, the mental health questions and evaluation provided to applicants to the Florida Bar exceed the rigor provided to those who wish to obtain an assault rifle in the State of Florida. In fact, disclosure of mental health treatment of diagnosis leads to a detailed and searching investigation into the applicants’ mental health records and evaluations from mental health professionals.

In Florida, to obtain a concealed weapons license, the behavior that would be related to weapon use would be analyzed, this includes conviction of certain crimes, including but not limited to: felony convictions, two DUIs in the last three years, a violent misdemeanor conviction in the last three years, evidence of substance abuse, dishonorable discharge from the armed forces, and evidence of domestic violence. To obtain a law license, the Florida Board of Bar Examiner does not review unlawful or unethical behavior, but attempts to divine likelihood of behavior from a past history of a psychological condition.
According to the Florida Board of Bar Examiners (FBBE) website, it adopted the role of assessing the mental health of each applicant, as follows:

The Florida Board of Bar Examiners must assess effectively the mental health of each applicant. A lawyer’s untreated or uncontrolled mental disorder, if severe, could result in injury to the public. The board assures each applicant that the Supreme Court, on the board’s recommendation, regularly admits applicants with a history of both mental ill-health and treatment by mental health professionals. The board considers satisfactory mental health to include: (1) the current absence of an untreated, uncontrolled mental illness that impairs or limits an applicant’s ability to practice law in a competent and professional manner; and (2) the unlikelihood of a relapse of such a prior mental illness. With respect to either, evidence of treatment by a mental health professional is useful. The board encourages applicants to seek the assistance of mental health professionals, if needed.

Initially, the FBBE asks questions that focus on mental disability status, which deter aspiring attorneys from seeking treatment for mental health conditions. Students that have sought treatment and actively managed their conditions should not be subject to an invasive and humiliating mental health screening solely on the basis of prior diagnosis. Further, even when the FBBE receives mental health records, there is no evidence that a record of a mental health treatment or diagnosis has any effect whatsoever on the person’s success or failure to practice law.

Notwithstanding no evidence of any correlation between a past mental health history, or even current treatment, the FBBE has the authority to request that the Supreme Court of Florida allow a “conditional” admission to the Florida Bar and make the Florida Bar the overseer of the person’s psychological treatment. This includes as follows:

Consent Agreement

In a Consent Agreement, the board is authorized to recommend to the Supreme Court of Florida the admission of the applicant who has agreed to abide by specified terms and conditions on admission to The Florida Bar. The conditions will include:

  • consult with a licensed mental health provider at least quarterly, or more frequently as such mental health provider deems necessary;
  • follow all instructions by the mental health provider;
  • have the mental health provider submit quarterly reports to The Florida Bar during the entire probationary period;
  • have the mental health provider immediately notify The Florida Bar if the applicant misses a scheduled appointment without prior rescheduling; and,
  • have the mental health provider submit quarterly sworn statements to The Florida Bar during the entire probationary period attesting to the applicant’s compliance with the conditions.

Length of Conditional Admission

The board’s policy on the length of conditional admission in mental health cases is from 1 year to an indefinite period, depending on individual circumstances.

For example, many members of the bar with a history of treated mental illness have “conditional” admission and are required to have their mental health provider report to the bar every quarter, and they must pay $75.00 per quarter for that privilege. Those lawyers have difficulty in finding jobs because of their “conditional admission” status. This self-appointed duty to screen for mental illness has a more dramatic effect on law students. I have spoken to many law students that have refused to receive mental health treatment for fear of being required to submit mental health records or of being subjected to “conditional admission” by the bar.

In 2014, I had the opportunity to address the Florida Board of Bar Examiners regarding the relationship between the Americans with Disabilities Act, and the FBBE’s practice of inquiring into the nature and extent of a person’s mental history. In 2014, the Department of Justice entered a settlement with the Supreme Court of Louisiana prohibiting it from requesting information regarding whether an applicant to the bar suffers from a mental illness, except if the information was related to conduct that would otherwise disqualify the applicant from becoming a lawyer. Notwithstanding the Department of Justice’s settlement with Louisiana, the Florida Board of Bar Examiners continued to use mental health questions and evaluations to screen and disqualify potential applicants with disabilities from becoming members of the bar.

Under the Americans with Disabilities Act, employers are not permitted to make any inquiry of a person’s mental health status prior to employment, and cannot make such inquiries after an offer is made unless the employer has objective evidence that an employee’s ability to perform essential job functions will be impaired by a medical condition; or an employee will pose a direct threat due to a medical condition.

While this may seem Orwellian, this is the reality of what bar applicants face in the guise of protecting the public. The FBBE cannot state any correlation between their searching inquiry of the mental health of applicants or conditional admission of applicants, and the future professional behavior of lawyers. In addition, the rational provided by the FBBE for their searching inquiry is that lawyers receive so much sensitive information in their careers, that the FBBE has the right to search a prospective lawyer’s entire background. Doctors, accountants, teachers, and others who receive sensitive information are not subject to such inquiry.

Focusing on actual dangers and conduct rather than stereotypical views relating to persons with treated mental illness is the essence of the mandate of the ADA. The existence of mental health eligibility screening by the Florida Board of Bar Examiners, and the imposition of differing standards of admission to lawyers with a mental disability is discrimination without evidence of need and is unlawful. If the Florida Bar attempted to screen existing members of the Bar for mental illness or treatment for mental illness, the ranks of the Bar would be decimated. However, the issue that is more of a threat are those persons who do suffer from mental illness, drug or alcohol addiction and do not receive assistance.

SOLUTION

Instead of stigmatizing mental illness, we must work to ensure that lawyers and law students have access to mental health treatment as well as wellness programs to find methods in which to control depression and anxiety caused by the stressors that are part and parcel of our profession. Our Supreme Court must respond to the epidemic of mental illness by forming a committee with mental health professionals, lawyers who have mental disabilities, members of the bench, members of the Florida Board of Bar Examiners and the Florida Bar Board of Governors to develop appropriate questions to ensure that the public is protected from persons who demonstrate behavior that pose a safety to the public, to end stigma against lawyers and applicants to the bar with a history of mental illness, and to encourage psychological wellness and treatment for mental illness.

 

“He will never go to a ‘normal’ school.”

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By: Michael Kranzlerpicture of Michael Kranzler

When I was in early elementary school, an educational therapist offered that grim assessment to my parents. I had just been diagnosed with extremely severe ADHD, helping us bridge the gap between my high aptitude and low performance. Every week, I would swear to my mom that I had turned in all my assignments for the week, but then she would come into my classroom, open up my desk, and find them crumpled up in the corners. Sure, I meant to turn them in, but somehow I consistently forgot.
Fortunately, my parents left me in the dark about what the therapist had said about me, not even telling me about it until I got into college.

I think about that a lot these days, in my first month as an attorney. My ADHD was so severe that psychologists at Yale flew me out to be a case study as a child, yet here I am, working long hours as a first year associate in a small law firm with a towering workload. And actually enjoying it! Who thought that would be possible? What changed to turn that little kid who was constantly getting into trouble into a licensed attorney?

Honestly, not very much. I’m still that same kid deep down. I’m still easily distracted, and can get extremely hyperactive, especially when excited. My normal speaking pace is so fast that it takes every fiber of my being to slow myself down in court. Even still, judges often tell me to slow down.
What changed wasn’t me; what changed was developing self-awareness. We all have our strengths and our weaknesses. I just so happen to have some weaknesses that stem from my ADHD. I can make careless errors from working too fast, even today. But now, what used to be my final draft is just the first of many drafts. I print it out, review, revise, and print it out again. I’m not ashamed of the fact that I can work too fast for my own good; I just use that knowledge now to reframe my approach.
I’m still bouncing off the walls with energy before my colleagues have even had their coffee. But I’ve learned to channel that energy, to take advantage of that knowledge to make myself even more productive while others are just starting to think about the beginning of their day.

ADHD doesn’t have to be a detriment. It doesn’t even have to be something I tell people about. But it is a part of me, just as it is a part of many of you reading this. Own it. Embrace it. Learn to take advantage of it. For every barrier it creates in your daily routine, it also gives you strength. Discover that strength, and use it to your advantage.
ADHD doesn’t define me as a person or as an attorney, but it forces me to adapt. And I couldn’t be more grateful for that.