Military attorneys ensure fairness by scrutinizing the motive and timing of the referral to the fitness-for-duty board. When a command initiates a mental health evaluation or a fitness-for-duty board immediately after a service member has taken a career-impacting action—such as filing a whistleblower complaint, being acquitted at a court-martial, or winning an appeal—it creates a strong appearance of illegal reprisal. The attorney’s strategy is to prove that the board is a pretext for retaliation, not a genuine concern for the member’s health.
The attorney will gather circumstantial evidence to establish a retaliatory motive. This involves creating a clear timeline: the protected action by the service member, followed almost immediately by the referral for the fitness-for-duty evaluation. They will also collect evidence of the member’s excellent performance record before the protected action, arguing that there was no prior indication of any fitness issue. This evidence is used to show that the referral is not based on legitimate concerns but is a direct response to the member’s legal activities.
The attorney will advise the service member to cooperate with the medical board but to also provide the board members with a formal statement outlining the context of the referral and the belief that it is retaliatory. They will also file a formal reprisal complaint with the Inspector General. By exposing the command’s improper motive, the attorney can discredit the entire fitness-for-duty process, arguing that its findings are tainted by the retaliatory intent of the referring commander. This protects the member from having the medical system weaponized against them.