Well i will start off as saying i am a Veteran of the USAF of about 5 years. I was discharged EPTS for a condition called Leber hereditary Optic Neurapathy. Its a Genetic disorder that affects the central vision. I was Med Boarded back in 2006/7 and sent to IPEB where i was granted 70%. Then it got sent up higher to washington DC where i was to be discharged immediatly EPTS. I was awarded 20% from the VA for my condition. They didnt know what my condition was until i was geneticly tested and found put what it was. I had several Doctors that did not agree with the ultimate decision that it could have been aggrivated by service related things. there was no way of telling how or when the condition was to come up so if there was a probability of serice relation that the tie would have gone to me right? thats what the IPEB agreed on but some where in DC they didnt. I was wondering if with all the new changes in the DOD and congress to Disability discharges if i had a change of changing my EPTS.
Not sure if i have a case for me to goto the BCMR
- Thread starter eddkaniff3000
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The BCMR will talk to some folks who have served on PEBs. If they say the decision was correct, I'd see little chance of them overturning it. If you then take it to court, the court will typically side with the PEB and BCMR since they don't like to get involved in "fitness for duty" issues (they don't want the military deciding who is fit to be a judge after all....)
There was a somewhat similar BCMR case:
http://boards.law.af.mil/AF/BCMR/CY2006/BC-2005-03755.doc
it didn't end well.
go here: Air Force Board for the Correction of Military Records (BCMR)
and search for "genetic"....that will give you some additional cases to look at.
You are past the 3 year window, so the BCMR isn't required to review your case, but I think they would anyway. Beyond that, I think your best bet would be to find a procedural error.....one that isn't "harmless"....like who did the testing....if you can get to the 8 year point......I think the presumption that brings gives you a better chance of a retirement.
Has your condition continued to deteriorate since leaving the service? Has the rate of deterioration changed? Do you have a Dr who is more of an expert than the AF Dr's who will argue service aggravation?
It may be worth your while to pay a lawyer (Jason or one of the other mil law specialists) a couple hours of pay ($500) to give your case a hard look......or talk to some of the folks at one of the Veterans associations.
The three year BCMR limit is not from the date of discharge but rather from the date of the discovery of error or injustice. I replied to your earlier post on this issue. The Disability Review Board under 10 USC 1554 has a 15 year window to apply.
Mike
Mike
Mike,
Great advice in the other thread!
Do you think the 3 year period continues to run while the DRB process goes thru it's paces? I believe the BCMR process doesn't slow down the statuate of limitations for filing in court......
Mike, you are correct. The 3-year statute of limitation begins on the date the DRB denies a case, not on the date the error or injustice was discovered. When a PEB considers an EPTS case, it can only rate that portion that can be said to be service aggravated, if any. Therefore, while a condition may be 70 percent disabling, you may only get a 10 or 20 percent rating.
Jason Perry
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They have to excuse late filings with BCMR/BCNR if it is in the "interest of justice." This has been interpreted to mean that if the case is meritorious, they should excuse the late filing. And they can't tell that unless they analyze the case and give a written explanation of why your case is not meritorious. The failure to do so has been ruled in court cases as an error.
The thing to be aware of, filing with the BCMR/BCNR does not "toll" the statute of limitations for court actions. So, you have to take into account the court statute of limitations as well (it is generally 6 years from date of discharge in wrongful discharge cases, and if you had a PEB before discharge, the date of discharge is also the start of the statute of limitations....if you never had a PEB, it would start to run for court purposes on the date of decision of the BCMR/BCNR). These are the generally applicable rules. There are exceptions, but they are pretty narrow.
The thing to be aware of, filing with the BCMR/BCNR does not "toll" the statute of limitations for court actions. So, you have to take into account the court statute of limitations as well (it is generally 6 years from date of discharge in wrongful discharge cases, and if you had a PEB before discharge, the date of discharge is also the start of the statute of limitations....if you never had a PEB, it would start to run for court purposes on the date of decision of the BCMR/BCNR). These are the generally applicable rules. There are exceptions, but they are pretty narrow.
Jason, while the ABCMR currently reviews a case to determine its merits regardless of passage of time, its easier for TJAG to defend the ABCMRs denial in court based on statute of limitation.
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Well, I would say that if timely filed, it has to be reviewed, so it is only when it is outside 3 years that DOJ would have to argue that statute of limitations is an effective block....However, I think that potential permutations are so numerous, it is hard to make a lot of generalizations.