THE ARMED FORCES AND

ATTENTION DEFICIT/HYPERACTIVITY DISORDER AND

LEARNING DISABILITIES

by Patricia H. Latham, J.D., Peter S. Latham, J.D.

Why the Armed Forces?

Large numbers of young adults with attention deficit hyperactivity disorder (AD/HD, also commonly known as ADD) and/or specific learning disabilities (LD) have an interest in joining the Armed Forces. The opportunity challenges and structure offered by military life have enormous appeal. At the same time, there may be obstacles to joining the military.

Nature of the Armed Forces

It has been more than thirty years since the United States has relied on the military draft to fill the ranks of its Armed Forces. While young males still are required to register with the Selective Services System it is unlikely that a draft will be necessary in the foreseeable future. The Armed Forces have tailored their recruiting to this new situation. At all levels, the services are smaller and more highly selective. Significantly, they have clearly indicated that the rules we are about to discuss, may be revised "in the event of mobilization or national emergency." [DoD Directive 1304.26; 21 Dec 1993; Qualification Standards for Enlistment, Appointment, and Induction.]

Constitutional Basis

The Armed Forces are authorized by the United States Constitution in several sections. Article I, § 8, authorizes the Congress to "declare War", "raise and support Armies", as well as to "Provide and maintain a Navy". Congress is specifically empowered "To make Rules for the Government and Regulation of the land and naval Forces..." Article II, § 2 makes the President "Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States." This language is also considered to cover the Air Force. During war, the Coast Guard operates under the President's command as a part of the Navy. At present the Coast Guard is part of the Department of Transportation.

Article III further authorizes the creation of our federal court system. However, the federal courts have long recognized that they have very limited powers to require or prohibit actions by the Armed Forces. One court put the thought this way: "The judiciary has no authority to make rules for the regulation of military forces." Thomasson v. Perry; Docket No. 95-2185 (4th Cir. 17 April 1996); available at: www.law.emory.edu/4circuit/apr96/952185a.html As a result, the courts have generally refused to intervene in military matters, except under the most extraordinary conditions.

Statutes

Congress has exercised its authority to create and regulate the Armed Forces of the United States. Among its many statutes on the topic is section 115, Title 10, United States Code (10 U.S.C. § 115) which authorizes the Department of Defense to set physical standards for the appointment of officers and the enlistment and induction of non-commissioned officers and enlisted personnel.

DoD Directives

The Department of Defense has met its statutory obligation to set physical standards for military personnel by issuing DoD Directives 1304.26, entitled Qualification Standards for Enlistment, Appointment, and Induction, December 21, 1993, ASD(P&R), thru Ch 1, March 4, 1994 and DoD Directive 6130.3, entitled Physical Standards for Appointment, Enlistment, and Induction, May 2, 1994. These directives are regulations which require all military services to follow specified standards in deciding whether applicants are physically qualified for military service and in deciding whether existing military personnel continue to meet the required physical and mental standards.

Entrance and Advancement Testing

DoD Directive1304.26 specifies the basic "age, citizenship, education, aptitude, physical fitness, dependency status, moral character" standards which must be met by applicants to the Armed Forces. Aptitude, and fitness standards, both physical and mental, are also specified.

To be acceptable, one must demonstrate an aptitude for military service by achieving suitable scores on the "Armed Forces Qualification Test (AFQT)". This test is derived from the Armed Services Vocational Aptitude Battery (ASVAB). This battery consists of subtests which seek to measure both academic and career aptitude in 10 separate areas. These are general science, arithmetic reasoning, word knowledge, paragraph comprehension, numerical operations, coding speed, auto and shop information, mathematics knowledge, mechanical comprehension, and electronics information. The tests are multiple choice. They are timed and no accommodations are permitted.

Physical and Mental Qualifications

Each applicant must be "independently evaluated by an authorized physician or a physician at a Military Entrance Processing Station to ensure the applicant" meets the requirements of DoD Directive 6130.3. This Directive sets forth a great many physical and mental requirements. Those directly pertinent to LD and ADD are as follows.

• Learning Disabilities

DoD Directive 6130.3 addresses the topic of LD, which the regulation collectively terms "academic skills disorders" a term which is defined by the DSM-III-R. The Department of Defense requires its mental evaluations to be conducted using the DSM-III-R criteria. It provides that "Diagnostic concepts and terms used in ... DoD Directive 6130.3... are in consonance with the Diagnostic and Statistical Manual, DSM-III-R, American Psychiatric Association, DSM-III-R, 1987. "

DoD Directive 6130.3 provides in part:

 

The causes for rejection for appointment, enlistment, and induction are:

***

4. Specific Academic Skills Defects. Chronic history of academic skills or perceptual defects secondary to organic or functional mental disorders that interfere with work or school after age 12.

So learning disabilities, under certain circumstances may disqualify an applicant for military service. However, learning disabilities that do not interfere with work or school after the age of 12 would not preclude military service.

• Attention Deficit Disorder

DoD Directive 6130.3 addresses the topic of attention deficit disorder under the general DSM-III-R heading of "behavior disorders."

 

DoD Directive 6130,3 provides in part:

 

The causes for rejection for appointment, enlistment, and induction are:

1. Personality or behavior disorders, as evidenced by frequent encounters with law enforcement agencies, antisocial attitudes or behavior that, while not sufficient cause for administrative rejection, are tangible evidence of impaired characterological capacity to adapt to military service.

2. Personality or behavior disorders where it is evident by history, interview, or psychological testing that the degree of immaturity, instability, personality inadequacy, impulsiveness, or dependency will seriously interfere with adjustment in the Armed Forces as demonstrated by repeated inability to maintain reasonable adjustment in school, with employers and fellow workers and other social groups....

Note that the fact of a behavior disorder is not disqualifying unless it is likely to prevent reasonable adaptation to military life. Therefore, the existence of AD/HD, in itself, is not disqualifying for military service.

 

Medication: The current use of medications in order to assist in managing the symptoms of AD/HD is per se disqualifying even if the medication would effectively enable the applicant to adapt to military life.

DoD Directive 6130.3 provides in part:

current use of medication to improve or maintain academic skills (e.g., methlyphenidate hydrochloride) is disqualifying.

Therefore, many applicants with ADD are effectively barred from military service.

Retention in the Armed Forces

DoD Instruction 1332.38, entitled Physical Disability Evaluation, November 14, 1996, governs the criteria by which the Armed Forces determine who shall be retained in the military, and on what terms.

The DoD distinguishes between physical and mental disabilities.

• DoD Directive 1332.18, 25 February 1986, entitled Separation from the Military Service by Reason of Physical Disability , sets forth the various medical conditions and physical defects which may render a member of the Armed Forces unfit for further military service. DoD Instruction 1332.38, November 14, 1996, entitled Physical Disability Evaluation, provides in part that "any military member on active duty or in the Ready Reserves who is found to be unfit will be retired, if eligible for retirement, or, if. not so eligible, separated." ¶7(B)1) DoD Instruction 1332.38, Physical Disability Evaluation, November 14, 1996.

• DoD Directive 1332.38, Part 3 STANDARDS FOR DETERMINING UNFITNESS DUE TO PHYSICAL DISABILITY in ¶ B.1 provides that a service "member shall be considered unfit when the evidence establishes that the member, due to physical disability, is unable to reasonably perform the duties of his or her office, grade, rank, or rating...."

Where mental health issues are concerned, additional factors may be considered. These are that there is "a decided medical risk to the health" of the individual "or to the welfare of other members were the member to continue on active duty or in an Active Reserve status", the "medical condition imposes unreasonable requirements on the military to maintain or protect the member" and the "member's established duties during any remaining period of reserve obligation." [¶¶ 3.B(2)(a)-(c)]

The conclusion that a service member is unfit for duty is a judgment that the Armed Forces has elected to make on the basis of the record before it. DoD Directive 1332.38(F)(1) requires that a "factual finding that a Service member is unfit" must be made "on the basis of objective evidence in the record as distinguished from personal opinion, speculation or conjecture." The conclusion must be made on the basis of the "preponderance of the evidence." [DoD Directive 1332.38(F)(2)]

• DoD Directive 1332.38 sets forth the "GUIDELINES REGARDING MEDICAL CONDITIONS AND PHYSICAL DEFECTS THAT ARE CAUSE FOR REFERRAL INTO THE DISABILITY EVALUATION SYSTEM" which are "cause for referral" of a case to the Disability Evaluating System (DES). Paragraph M of the Directive states that the "terminology and diagnostic concepts used in this section are in consonance with the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). " It then identifies a series of "psychiatric disorders". Among them are:

d. Personality .... Disorders, Disorders of impulse control not elsewhere classified, .... Mental Retardation (primary), or Learning Disabilities are conditions that may render an individual administratively unable to perform duties rather than medically unable, and may become the basis for administrative separation. These conditions do not constitute a physical disability despite the fact they may render a member unable to perform his or her duties. [DoD Directive 1332.38; Guidelines, ¶M(1)(d)]

• DoD Directive 1332.18, 25 February 1986 , entitled Separation from the Military Service by Reason of Physical Disability, contains similar, but more general, language. Personality disorders, disorders of impulse control, and learning disabilities are fundamental defects which the service member should have disclosed on applying to the service. If they were unknown to the applicant at the time, their discovery provides grounds for annulment of the agreement between the Armed Forces and the applicant. When discovered, these conditions are handled through "administrative separation" rather than retirement, disciplinary expulsion, or separation based on disability.

Conclusion

The Armed Forces offer opportunity, challenge, and structure to young adults. Some young adults with LD or AD/HD may be disqualified for military service under current, regulations. For example, the current use of medication to improve or maintain academic skills is disqualifying.

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