32 C.F.R. § 75.5

DoD criteria for identifying family members with special needs

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(a) Special medical needs. Individuals who meet one or more of the criteria in this section will be identified as a family member with special medical needs:

(1) Potentially life-threatening conditions or chronic (duration of 6 months or longer) medical or physical conditions requiring follow-up care from a primary care manager (to include pediatricians) more than once a year or specialty care.

(2) Current and chronic (duration of 6 months or longer) mental health conditions (such as bi-polar, conduct, major affective, thought, or personality disorders); inpatient or intensive (greater than one visit monthly for more than 6 months) outpatient mental health service within the last 5 years; or intensive mental health services required at the present time. This includes medical care from any provider, including a primary care manager.

(3) A diagnosis of asthma or other respiratory-related diagnosis with chronic recurring symptoms that involves one or more of the following:

(i) Scheduled use of inhaled or oral anti-inflammatory agents or bronchodilators.

(ii) History of emergency room use or clinic visits for acute asthma exacerbations or other respiratory-related diagnosis within the last year.

(iii) History of one or more hospitalizations for asthma, or other respiratory-related diagnosis within the past 5 years.

(4) A diagnosis of attention deficit disorder or attention deficit hyperactivity disorder that involves one or more of the following:

(i) Includes a co-morbid psychological diagnosis.

(ii) Requires multiple medications, psycho-pharmaceuticals (other than stimulants) or does not respond to normal doses of medication.

(iii) Requires management and treatment by a mental health provider (e.g., psychiatrist, psychologist, social worker or psychiatric nurse practitioner).

(iv) Requires the involvement of a specialty consultant, other than a primary care manager, more than twice a year on a chronic basis.

(v) Requires modifications of the educational curriculum or the use of behavioral management staff.

(5) A chronic condition that requires:

(i) Adaptive equipment (such as an apnea home monitor, home nebulizer, wheelchair, custom-fit splints/braces/orthotics (not over-the-counter), hearing aids, home oxygen therapy, home ventilator, etc.).

(ii) Assistive technology devices (such as communication devices) or services.

(iii) Environmental or architectural considerations (such as medically required limited numbers of steps, wheelchair accessibility, or housing modifications and air conditioning).

(b) Special educational needs. Family members of active duty Service members (regardless of location) and civilian employees appointed to an overseas location eligible for enrollment in a DoDEA school on a space-required basis will be identified as having special educational needs if they have, or are found eligible for, either an IFSP or an IEP under 32 CFR part 57.

Notes of Decisions

Cited in 10 cases, 1977–2008 · leading case: Hanna v. Sec'y of the Army, 513 F.3d 4 (1st Cir. 2008).

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Hanna v. Sec'y of the Army, 513 F.3d 4 (1st Cir. 2008). · cites it 15× “" 32 C.F.R. § 75.5 (c)(2)(ii). This argument too is an after-the-fact rationalization which finds no support in the DACORB decision or in the record.”

Aguayo, Agustin v. Harvey, Francis, 476 F.3d 971 (D.C. Cir. 2007). · cites it 2× “32 C.F.R. § 75.5 (a). An applicant who would have qualified for CO status before entering the military, however, generally is not eligible for CO classification once in the service.”

Gilbert P. Hager, M.D., Etc. v. Sec'y of the Air Force & Commanding Gen., Hanscom Air Force Base, Massachusetts, 938 F.2d 1449 (1st Cir. 1991). “The chaplain made conflicting statements regarding sincerity: "this statement seems to express sincerity;” "Captain Hager is quite sincere about his request for discharge;” "this applicant does not reflect sincerity.”

Leonard v. Dep't of the Navy, 786 F. Supp. 82 (D. Me. 1992). · cites it 4× “Information presented by the claimant should be sufficient to convince that the claimant’s personal history reveals views and actions strong enough to demonstrate that expediency or avoidance of military service is not the basis of his claim.”

Woods v. Sheehan, 987 F.2d 1454 (9th Cir. 1993). “Under 32 C.F.R. § 75.5 and Marine Corps Order 1306.”

Jones v. Mundy, 792 F. Supp. 1009 (E.D.N.C. 1992). “32 C.F.R. §§ 75.5 and 76.6(d); Marine Corps Order 1306.”

Jashinski v. Holcomb, 482 F. Supp. 2d 785 (W.D. Tex. 2006). · cites it 10× “See 32 C.F.R. § 75.5 (d),(e). 29 . AR at 25, 27.”

Reynolds v. Dukakis, 441 F. Supp. 646 (D. Mass. 1977). · cites it 2× “" 32 C.F.R. § 75.5 (a). To this end the Defense Department has established a mechanism described above which permits a person on active duty to either obtain a substantial change in the nature of his duties from combatant to non-combatant or to obtain a discharge if he develops…”

Aguayo v. Harvey, 445 F. Supp. 2d 29 (D.D.C. 2006). · cites it 2× “Conscientious Objector Application The Army’s established procedure for the evaluation of CO claims provides that military personnel will exercise their discretion in determining whether the soldier has met his burden of establishing CO status by clear and convincing evidence.”

Roby v. United States Dep't of the Navy, 76 F.3d 1052 (9th Cir. 1996). “” 32 C.F.R. § 75.5 (c)(1); MIL-PERSMAN 1860120.”

— 32 C.F.R. § 75.5(c)(2) — 1 case

Leonard v. Dep't of the Navy, 786 F. Supp. 82 (D. Me. 1992). “Information presented by the claimant should be sufficient to convince that the claimant’s personal history reveals views and actions strong enough to demonstrate that expediency or avoidance of military service is not the basis of his claim.”

— 32 C.F.R. § 75.5(d) — 1 case

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