Folks,
I am looking for cases in the reserves and National Guard where your duty related condition was deemed to be non duty related. This is to support media interest on this issue. If you have such a case, post the details on this thread and I will direct interested media to this thread. These cases are especially compelling if the VA rated the condition declared non duty related.
Thanks,
Mike
Mike, I'm a Colonel in the Air Force Reserve. In my case two separate line of duty (LOD) investigations were conducted by two separate Colonels from the Air Force Reserve Command -- and though both found my injury/illness was incurred in the line of duty (incurred while I was assigned overseas on a continuous period active duty of more than 3 years), each was overturned without any credible supporting rationale by the second in command of the Air Force Reserve, despite formal objections from reviewing staff attorneys, and contrary to applicable laws/regs.
The first was an informal line of duty determination which took 6 about 6 months, and the second was a "reinvestigation." After the first appointing official found that my injury/illness had been incurred in the line of duty (ILOD), a recommendation based on several subordinate recommendations from reviewing officials (i.e. the investigating officer, medical officer, staff judge advocate, etc), my case was curiously referred to an Air Force Reserve LOD Review Board headed by the Deputy Chief of the Air Force Reserve, Major General Richard Haddad. According to the paperwork I received many months later, the Air Force Reserve LOD Review Board was comprised of Major General Haddad, a medical officer, a JAG officer, and an NCO who served as the board secretary. The LOD Review Board medical officer recommended to Major General Haddad that my LOD determination be changed from "ILOD" to "existed prior to service (EPTS) and therefore not in the line of duty (NLOD)." The medical officer offered nothing in the way of required medical evidence to support her conclusion of "EPTS" -- the only rationale she provided for her recommendation was a general reference to the Air Force Instruction for LOD Determinations (AFI 36-2910); she offered nothing to support her recommendation other than a generic, non-specific reference to the entire AFI. Curiously the LOD Review Board Reviewing Staff Judge Advocate formally non-concurred with the medical officer's recommendation (to change the appointing official's finding of "ILOD" to a new finding of "EPTS-NLOD"). In addition to his formal non-concurrence with the reviewing medical officer's recommendation, the review Staff Judge Advocate noted "ILOD" (meaning "In the Line of Duty"). Major General Haddad, without further explanation, overruled the finding of the appointing official and changed the finding from "ILOD" to "EPTS-NLOD" -- again offering no medical evidence to support his finding of EPTS (in other words, neither Major General Haddad nor the reviewing medical officer cited even one piece of evidence that my injury/illness had exited prior to service).
Months later, in a response to Congressman Gus Bilirakis, the Air Force Office of Legislative Affairs wrote that "Existed Prior to Service does not necessarily mean that an illness or injury existed prior to military service." Huh? I'm a licensed attorney and found this statement incredible. But what I read next was a stunning admission that the Air Force Reserve was blatantly disregarding Air Force and DoD Instructions and Federal Law pertaining to Line of Duty determinations. The Air Force Reserve's exact response to Congressman Bilirakis was long and convoluted, so I'll spare you the pain of deciphering it, but it basically wrote that if a service member ever has a break in military service, any illness or injury which is incurred prior to that break in service becomes a pre-existing condition (for which the Service bears no responsibility) during subsequent periods of military service. In other words, once there is a break in military service, the Air Force Reserve alleges it no longer has any responsibility for that injury or illness. Of course, this assertion is clearly contrary to every single applicable federal law and DoD & Air Force Instruction. If this explanation offered by the Air Force Reserve were legally sufficient, no member of the Armed Forces could ever have claimed, for example, Vietnam-era agent orange exposure after they had any break in active duty service. Simply ludicrous.
So your point about the VA finding such illnesses/injuries "Service Connected" after the Service found it NLOD is very important. Why? Because the VA and the Services must follow the same legal standard for "service connected" and "in the line of duty" -- and when the VA reviews the same facts/evidence and rejects the NLOD determination of the Service, there is and should be immediate reason for concern. It's a red flag. And that is exactly what happened in my case. The VA reviewed and rejected Major General Haddad's decision to change the LOD finding in my case from "ILOD" to "NLOD-EPTS."
The Reinvestigation: Within days of receiving the results of the first LOD investigation during December 2013, I submitted a request for a reinvestigation. Pursuant to AFI 36-2910, the reinvestigation could only consider "new evidence." My request was granted in January of 2014. What was the new evidence in my case? A corrected DD-214 issued to me subsequent to the start of the first LOD investigation by the same Air Force Reserve Command which Major General Haddad was/is Deputy Commander. It had my correct dates of continuous active service from 2001 through 2004. So I expected that the reinvestigation would be very fast, given that the only new evidence which could be considered was a single page document issued by the same command doing the investigation. My expectation proved grossly inaccurate. I didn't receive the results of the reinvestigation (despite dozens of phone calls/emails to Air Force Reserve Command POCs over a period of many months) until August of 2014. And what I learned later was that the investigating officer was told to conduct the entire investigation all over again.
The investigating officer and appointing official once again found that my injury/illness was "ILOD" (in the line of duty). He noted in his findings that my condition had been incurred while assigned overseas on a continuous period of active duty for more than 3 years and that he found zero evidence to suggest that my illness/injury had exited prior to service. And once again, offering nothing in the way of an explanation or rationale for his decision, Major General Haddad simply overruled the finding of the second investigating officer/appointing official and found my condition "EPTS-NLOD."
And here is the reality -- the system is rigged against Service Members. I've learned that the Armed Services (and evidently the Air Force Reserve is among the most egregious violators) routinely and deliberately disregard applicable law, regs and instructions and make wrongful LOD findings that conditions were NLOD (not in the line of duty), in order to avoid the financial costs of treatment and benefits for these conditions. Like HMOs, they systematically deny claims which are rightfully ILOD (in the line of duty) because they know that most Service Members cannot afford an attorney to fight them, and that even if the member somehow gets an attorney to fight for them and wins, the attorney fees will never be reimbursable. In other words, even if a service member hires an attorney and wins his/her case at the Board of Correction of Military Records (which is not comprised of judges or lawyers but Air Force civilian employee lay persons randomly selected like jury members) or later in the Court of Federal Claims, the money they paid the attorney may well exceed any money they would had been paid but for the erroneous LOD finding (say back pay or INCAP pay). So in the end the Service Member may well end up spending more to fight it than he/she can recover.
So the Services bet, like HMOs, that most service members will tire fighting them and just go away. And the ones that don't, won't get any punitive damages or big money judgments against the Service. Moreover, nobody who violated regs or laws ever gets disciplined (discipline is not in the power of BCMRs or the Court of Federal Claims). So the current state of the laws and regs leaves ZERO accountability for Service rule/law breakers, and the excessively broad grant of sovereign immunity Congress has accorded the Armed Services has insulated the Services from any substantive judicial scrutiny (apart from lost monies). Bottom line: the current system has incentivized and encouraged the Services to pray on these Service Members. Sadly, it all comes down to money during times of shrinking budgets. Like HMOs, the Services that most wounded warriors simply give up trying to fight the endless bureaucracy; and the few who don't, can only recover the back pay which was wrongfully denied them but none of their attorney fees and costs. It's a game with the rules and odds totally stacked in favor of the Services -- one they really can't lose. Why wouldn't they play it?