STANDARDS FOR DETERMINING UNFITNESS...NEW QUESTIONS

[Jack]

Hello,

Jason and Mike I have some q's regarding this topic:

DoDI 1332.38

E3.P3. ENCLOSURE 3 PART 3

STANDARDS FOR DETERMINING UNFITNESS DUE TO PHYSICAL DISABILITY OR MEDICAL DISQUALIFICATION

E3.P3.2. General Criteria for Making Unfitness Determinations

E3.P3.2.1. 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 (hereafter called duties) to include duties during a remaining period of Reserve obligation.

E3.P3.2.2. In making a determination of a member’s ability to so perform his/her duties, the following criteria may be included in the assessment:

E3.P3.2.2.1. The medical condition represents a decided medical risk to the health of the member or to the welfare of other members were the member to continue on active duty or in an Active Reserve status.

E3.P3.2.2.2. The medical condition imposes unreasonable requirements on the military to maintain or protect the member.

Would impairments such as memory and concentration(PTSD or TBI) and hearing loss or ear disease that causes one to make mistakes/errors in calling in wrong fire mission for artillery and mortars be considered a risk to self and others? There is no record of it but the mistake was made. Do you think a CO wouldnt want one who has/could make mistakes/errors like that?

E3.P3.3. Relevant Evidence.

All relevant evidence will be considered in assessing Service member fitness, including the circumstances of referral. To reach a finding of unfit, the PEB must be satisfied that the information it has before it supports a finding of unfitness.

E3.P3.3.1. Referral Following Illness or Injury. When referral for physical disability evaluation immediately follows acute, grave illness or injury, the medical evaluation may stand alone, particularly if medical evidence establishes that continued service would be deleterious to the Service member’s health or is not in the best interests of the respective Service.

Would impairments such as memory and concentration(PTSD or TBI) and hearing loss and ear disease that causes one to make mistakes/errors in calling in wrong fire mission for artillery and mortars be considered deleterious to the Service member’s health or is not in the best interests of the respective Service?

Could you give an example of an illness or injury?

E3.P3.3.2. Referral For Chronic Impairment. When a Service member is referred for physical disability evaluation under circumstances other than as described in subsection E3.P3.3.1., above, evaluation of the member’s performance of duty by supervisors as indicated, for example, by letters, efficiency reports, credential reports, status of physician medical privileges, or personal testimony may provide better evidence than a clinical estimate by a physician of the Service member’s ability to perform his or her duties. Particularly in cases of chronic illness, these documents may be expected to reflect accurately a member’s capacity to perform.

Im guessing personal testimony will be given no weight. I can see it now. The PEB says AHA! No efficiency reports, credential reports by supervisors. Hmmm. We dont care about personal testimony and VA info. I reckon thats what one gets for keeping his mouth shut and not complaining to get the evidence in his records.

E3.P3.3.3. Adequate Performance Until Referral. If the evidence establishes that the Service member adequately performed his or her duties until the time the Service member was referred for physical evaluation, the member may be considered fit for duty even though medical evidence indicates questionable physical ability to continue to perform duty.

When is until the time? Until the exact day referred? The preceding six or 12 months?
And what exactly is adequately performed? A lack of E3.P3.3.2. as an example?
And once again I reckon thats what one gets for keeping his mouth shut and not complaining to get the evidence in his records.

E3.P3.3.4. Cause and Effect Relationship. Regardless of the presence of illness or injury, inadequate performance of duty, by itself, shall not be considered as evidence of unfitness due to physical disability unless it is established that there is a cause and effect relationship between the two factors.

E3.P3.4. Reasonable Performance of Duties

E3.P3.4.1. Considerations. Determining whether a member can reasonably perform his or her duties includes consideration of:

E3.P3.4.1.1. Common Military Tasks. The member, due to physical disability, is unable to reasonably perform the duties of his or her office, grade, rank, or rating (hereafter called duties) to include during a remaining period of Reserve obligation. For example, whether the member is routinely required to fire his or her weapon, perform field duty, or to wear load bearing equipment or protective gear.

Would things like PULHES with all threes play a part here in the examples or in some other way?
I hear THEY can change the PULHES at anytime if THEY think it is to help you. Any comments?
Would a PHA have alot of weight with PEB since the PULHES was generated from this in the first place?
Or once again if it is to help you the PHA will be ignored?

E3.P3.4.4. Overall Effect. A member may be determined unfit as a result of the overall effect of two or more impairments even though each of them, standing alone, would not cause the member to be referred into the DES or be found unfit because of physical disability.

Could you give an example of two or more impairments?
And if you were unfit by DoDI 1332.38 why would it matter about each impairment?
I thought the AR???, which states criteria for each impairment rating, is the decision made after unfit?
I might be confusing myself. Hell its 430 in the morning.
Please explain.


Would really like to get my hands on the info on how much weight PEB gives to VA records/decisions in their decisions.

Actually that info would be perfect for those on this site.

But Im sure the DOD wouldnt state that in their records why they came to a decison huh? That might help someone in the future huh?

Or anyone out there that has this crucial/personal info or experience?

Any comments appreciated.

Excuse my ranting. The PTSD and the meds are kicking in.

And thanks to all who are helping others especially Jason, Mike, Sopranos guy and crazy old Indiana boy

THX

JACL

[Jack]

bump...thx

[Jack]

bump again....understand this might have been overlooked but didnt want it to fall between the cracks...thx

[Purple]

Jack,

I hope you are feeling better, and doing well today.

Bump for Jason/mike per Jack's previous post

[Jack]

THX purple....better today than yesterday....tommorrow worse than today....lol

[Jason]

Jack,

Sorry for not replying yet, I am attending to several cases that require my attention and due to the length of your question, I haven't taken on your post yet when I check back in here. I look to be very busy until the weekend, but if you have a particularly pressing question that I can answer, feel free to ask. I would appreciate it if you bump the thread in a few days if I don't reply sooner.

[Jack]

bump...thx Jason...u the man

[Jason]

Originally Posted by Jack

Hello,

Jason and Mike I have some q's regarding this topic:

E3.P3.2.2. In making a determination of a member’s ability to so perform his/her duties, the following criteria may be included in the assessment:

E3.P3.2.2.1. The medical condition represents a decided medical risk to the health of the member or to the welfare of other members were the member to continue on active duty or in an Active Reserve status.

E3.P3.2.2.2. The medical condition imposes unreasonable requirements on the military to maintain or protect the member.

Would impairments such as memory and concentration(PTSD or TBI) and hearing loss or ear disease that causes one to make mistakes/errors in calling in wrong fire mission for artillery and mortars be considered a risk to self and others? There is no record of it but the mistake was made. Do you think a CO wouldnt want one who has/could make mistakes/errors like that?

It could, but I tend to think that would be looked at as inability to reasonably perform your duties. CO would probably not want that person, but remember that is not the criteria for unfitness.

Would impairments such as memory and concentration(PTSD or TBI) and hearing loss and ear disease that causes one to make mistakes/errors in calling in wrong fire mission for artillery and mortars be considered deleterious to the Service member’s health or is not in the best interests of the respective Service?

Again, these probably would be looked at as unfitting due to limitation on duty performance.

Could you give an example of an illness or injury?

PTSD or TBI would count.

Im guessing personal testimony will be given no weight. I can see it now. The PEB says AHA! No efficiency reports, credential reports by supervisors. Hmmm. We dont care about personal testimony and VA info. I reckon thats what one gets for keeping his mouth shut and not complaining to get the evidence in his records.

Not that it is given no weight, it is that they tend to look for supporting documentation to confirm the lay testimony.

When is until the time? Until the exact day referred? The preceding six or 12 months?

Date of initiation of MEB.

And what exactly is adequately performed? A lack of E3.P3.3.2. as an example?

Without significant duty limitations.

And once again I reckon thats what one gets for keeping his mouth shut and not complaining to get the evidence in his records.

It can hurt you, not having things documented.

Would things like PULHES with all threes play a part here in the examples or in some other way?

Yes.

I hear THEY can change the PULHES at anytime if THEY think it is to help you. Any comments?

They can change PULHES if in their opinion your condition has changed.

Would a PHA have alot of weight with PEB since the PULHES was generated from this in the first place?

It depends for what purpose and how recent the PHA was completed.

Could you give an example of two or more impairments?
And if you were unfit by DoDI 1332.38 why would it matter about each impairment?

They rarely find this and they like to stick to separately unfitting conditions. But, and example would be PTSD that only caused relatively minor duty limitations (say anxiety in certain situations) and TBI that caused mild cognitive impairment (say, forgetfulness) that together significantly limited ability to perform duties. I have not seen them find this, though it should be argued if the conditions are questionably unfitting separately.

I thought the AR???, which states criteria for each impairment rating, is the decision made after unfit?

I don't understand the question

Would really like to get my hands on the info on how much weight PEB gives to VA records/decisions in their decisions.

Not as much as they should, in my opinion. If they don't account for why they discount the VA records/decisions, I would argue that this is error.

Actually that info would be perfect for those on this site.

You have to look at the specific facts of each case to assess if they are rating appropriately

But Im sure the DOD wouldnt state that in their records why they came to a decison huh? That might help someone in the future huh?

They are supposed to, but by and large, the omission of explanation is a huge issue. However, if they get this wrong, the courts are good about holding their feet to the fire. Failure to account for favorable evidence is the basis for a successful appeal.

[Jack]

THX Jason for your time.....another thing to add....found out today 2 soldiers I know personally have been turned down for an increase for PTSD. The reason in denial letter was that VA VOC/REHAB Psych Dr after only 15 minutes with soldier in writing state soldier has personality disorders...which we all know is used by both DOD and VA to deny. Funny thing is both soldiers regular VA psych Dr they have seen for over 2 years has never stated personality disorders...ONLY PTSD...this is AMAZING..the *** they are trying to pull...
The VOC/REHAB Psych Dr also stated soldier was not feasible for employment and was denied ch 31 benefits. I read online that most that get this statement from VOC/REHAB Psych Dr pretty much solidifies that u r unemployable...I reckon thats why they VOC/REHAB Psych Dr came up with the bull**** diagnosis....AMAZING....