Fitness vs. Unfitness

[Jason]

This is one of the most maddening issues because the regulations are not uniformly applied.

DoD Instruction 1332.38 stated deployability is to be considered a factor but should not be the sole factor. The AF, and Department of the Navy (DoN)focused on this factor much more so than the Army. The Directive-Type Memo on deployability came out the begining of this year and said it could be a sole factor. As far as I saw, Army did not change their practice (not counting it that much) nor as far as I could tell did the AF/DoN (saying it could be a basis for unfitness, but not neccesarily finding so depending on the case).

The real problem, in my view, is that DoN particularly has found "fit," and then later administratively discharged for not being able to deploy. I think its illegal, but you would have to fight this.

[jim1960]

Jason is the "Directive-Type Memo on deployability" a DoD memo? If so where can I find a copy of it?

Thanks

[Jason]

Directive Type Memo on Deployability

[xeno]

It sounds as though it would be a good idea for the commanders letter to have a statement like

This person can perform all required duties in his current AFSC & grade. However deplorability might be an issue.

This could hurt you if they lever it on deplorability. However could help your found fit & later they want to discharge you because of it.

What you think?

X

[maparker]

DoDI 1332.38

E3.P3. ENCLOSURE 3 PART 3

STANDARDS FOR DETERMINING UNFITNESS DUE TO PHYSICAL DISABILITY OR MEDICAL DISQUALIFICATION

E3.P3.1. Uniformity of Standards.

The standards listed within this instruction for determining unfitness due to physical disability shall be strictly adhered to, unless exceptions are approved by the Under Secretary of Defense for Personnel and Readiness based upon the unique needs of the respective Military Department.

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.

E3.P3.2.2.3. The Service member’s established duties during any remaining period of reserve obligation.

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.

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.

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.

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.

E3.P3.4.1.2. Physical Fitness Test. Whether the member is medically prohibited from taking the respective Service's required physical fitness test. When an individual has been found fit by a PEB for a condition which prevents the member from taking the Service physical fitness test, the inability to take the physical fitness test shall not form the basis for an adverse personnel action against the member.

E3.P3.4.1.3. Deployability. When a Service member’s office, grade, rank or rating requires deployability, whether a member’s medical condition(s) prevents positioning the member individually or as part of a unit with or without prior notification to a location outside the Continental United States. Inability to perform the duties of his or her office, grade, rank, or rating in every geographic location and under every conceivable circumstance will not be the sole basis for a finding of unfitness. When deployability is used by a Service as a consideration to determine fitness, the standard must be applied uniformly to both the Active and Reserve components of that Service.

(Note: The rule above was modified by a DTM in DEC 2007. The DTM states that Services can now use deployability as the sole reason for finding a member unfit. Services are not required to find a person unfit if non deployable but they can if they desire.)

E3.P3.4.1.4. Special Qualifications. For members whose medical condition causes loss of qualification for specialized duties, whether the specialized duties comprise the member's current duty assignment; or the member has an alternate branch or specialty; or whether reclassification or reassignment is feasible.

E3.P3.4.2. General, Flag, and Medical Officers. An officer in pay grade 0-7 or higher or a medical officer in any grade shall not be determined unfit because of physical disability if the member can be expected to perform satisfactorily in an assignment appropriate to his or her grade, qualifications, and experience. Thus, the inability to perform specialized duties or the fact the member has a condition which is cause for referral to a PEB is not justification for a finding of unfitness.

E3.P3.4.3. Members on Permanent Limited Duty. A member previously determined unfit and continued in a permanent limited duty status or otherwise continued on active duty, will normally be found unfit at the expiration of his or her period of continuation. However, the member may be determined fit when the member's condition has healed or improved so that the member would be capable of performing his or her duties in other than a limited duty status.

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.

E3.P3.5. Presumption of Fitness

E3.P3.5.1. Application. Except for Service members previously determined unfit and continued in a permanent limited duty status, Service members who are pending retirement at the time they are referred for physical disability evaluation enter the DES under a rebuttable presumption that they are physically fit. The DES compensates disabilities when they cause or contribute to career termination. Continued performance of duty until a Service member is approved for length of service retirement creates a rebuttable presumption that a Service member’s medical conditions have not caused career termination.

E3.P3.5.2. Presumptive Period. Service members shall be considered to be pending retirement when the dictation of the member’s MEB occurs after any of the circumstances designated in paragraphs E3.P3.5.2.1. through E3.P3.5.2.4., below.

E3.P3.5.2.1. When a member’s request for voluntary retirement has been approved. Revocation of voluntary retirement orders for purposes of referral into the DES does not negate application of the presumption.

E3.P3.5.2.2. An officer has been approved for Selective Early Retirement.

E3.P3.5.2.3. An officer is within 12 months of mandatory retirement due to age or length of service.

E3.P3.5.2.4. An enlisted member is within 12 months of his or her retention control point (RCP) or expiration of active obligated service (EAOS) but will be eligible for retirement at his or her RCP/EAOS.

E3.P3.5.3. Overcoming the Presumption. The presumption of fitness rule shall be overcome when:

E3.P3.5.3.1. Within the presumptive period an acute, grave illness or injury occurs that would prevent the member from performing further duty if he or she were not retiring; or

E3.P3.5.3.2. Within the presumptive period a serious deterioration of a previously diagnosed condition, to include a chronic condition, occurs and the deterioration would preclude further duty if the member were not retiring; or

E3.P3.5.3.3. The condition for which the member is referred is a chronic condition and a preponderance of evidence establishes that the member was not performing duties befitting either his or her experience in the office, grade, rank, or rating before entering the presumptive period. When there has been no serious deterioration within the presumptive period, the ability to perform duty in the future shall not be a consideration.

E3.P3.6. Evidentiary Standards for Determining Unfitness Because of Physical
Disability

E3.P3.6.1. Factual Finding. A factual finding that a Service member is unfit because of physical disability depends on the evidence that is available to support that finding. The quality of evidence is usually more important than quantity. All relevant evidence must be weighted in relation to all known facts and circumstances which prompted referral for disability evaluation. Findings will be made on the basis of objective evidence in the record as distinguished from personal opinion, speculation, or conjecture. When the evidence is not clear concerning a Service member's fitness, an attempt will be made to resolve doubt on the basis of further objective investigation, observation, and evidence. Benefit of unresolved doubt shall be resolved in favor of the fitness of the Service member under the rebuttable presumption that the member desires to be found fit for duty.

E3.P3.6.2. Preponderance of Evidence. Findings about fitness or unfitness for Military Service shall be made on the basis of preponderance of the evidence. Thus, if a preponderance (that is, more than 50 percent) of the evidence indicates unfitness, a finding to that effect will be made. If, on the other hand, a preponderance of the evidence indicates fitness, the Service member may not be separated or retired by reason of physical disability.

[navyres_cs]

I am a new member to this forum with this being my first post. I have reached out here as I am uncertain about which way to turn now.

I was injured in an auto accident in May of 2004 while on reserve duty. I have been found fit for duty and unfit for duty due to physical disability only to have it revoked and then found fit again. I have been waived for every PRT cycle since injured and continue to go through a never ending medical evaluation process. I was refered to the VA to continue medical attention once removed from the TriCare roles who found me as 40% disabled (20% Cervical disk disease with sensory neuropathy, upper extremeties and 20% Lumbar Disc disease which includes thoracic spondylosis). I am currently attached to a reserve unit from NAF WDC, Andrews AFB and have more than enough years to retire but have had my career impacted by the injuries I sustained.

The question is how do I get through this continuing medical evaluation process and have the Navy recognize the true extent of my injuries and it's impact on my life and career? I feel lost in the system and can't seem to get a straight answer from anyone who should know what happens next.

[Jason]

Since you have been referred to PEB and found fit, it requires a worsening of your condition to go back to an MEB and PEB. Has your condition changed since your MEB? How do your injuries impact your performance of duty?

One thing I should mention, if you request retirement or are processed for retirement, any PEB will be done with the presumption that you are fit for duty.

Bottom line, in order to get rated, you need to go through another PEB. A doctor should refer you to MEB if you have a worsening of condition. Your annual medical certification may trigger a MEB, too.

[navyres_cs]

After being found fit in June of 2005 I was then placed in another MED/PEB cycle after not being able to train for or participate in PRT cycle due to the injuries I had sustained. Additional amplifying medical information and the determination by the VA were supplied to BUMED as part of this newer evaluation process. On Feb 06, 2006 I received notification from the Chief, Bureau of Medicine and Surgery that assigned me a Physical Risk "4" and directed NPC to resubmit with a current ortho examine for postramatic cervical radiculopathy and lumbar discopathy. They came back with a determination of Physical Risk "5" Not Physically Qualified (NPQ) for retention in the Navy Reserves and seperation due to a physical disability on June 09, 2006.

While were submitting the paper work to have my LOD status re-instatement and be processed out of the Navy under that program my status was reverted back to the orginal determination of Fit on June 13, 2006. The paper work for me to have LOD reinstated, was processed until June 15, 2006 and approved on June 19, 2006.

What burns me up is the fact the determination of fit stated I was required another physical evaluation a year later to see if my condition had changed which was done and came back with the determination of NPQ due to Physical disability. Then they overturned it when I wanted to be processed under the LOD program since my physical disability was due to injury sustained in an LOD status.

I have been battling them every since. I am in the begining of my 3rd 6 month extension of service for reason of medical evaluation.

Bascially I believe they came to the correct decision in June of 2006 that they should have come to in June of 2005 that I have a physical disability that makes me undeployable and unable to meet the qualifications to remain in the Navy. The VA has rated this at 40% and is evaluating me for another connected issue.

[dedevaney]

I would like to read a copy of AR40-501 dated 29 May 2007 NOT the Dec 07 updated version. Can you assist?