APFT failure does NOT carry the possibility of an UOTHC discharge. You're worrying for nothing.
Dual Action Process
- Thread starter yooper2001
- Start date
Thanks everyone...trying to stay positive. I guess I really shouldn't worry. I had my first MEB back in 2007 and have had RILOs every year since. I thought I could will myself to 20 years, but my body said otherwise.
My medical discharge paperwork is at AFPC.....we will see how long it is till I get my orders...Apparently the legal office is accepting defeat and allowing me to get my medical separation. My ADC says once I have orders in my hands I am safe.
Congrats!!! I will find out what is going on soon. ADC like everyone in this forum says I don't have to worry. It is still very confusing. Somebody from the MPF called up my IDES action officer to hold up on giving me my retirement orders until after this last PFT. Now they have given me a LOR and will be establishing a UIF on me.
To make it more interesting...I just got selected for a Joint Staff assignment and my CC said I needed to accept the assignment.
You have some fu#%!&# up command. Are you on a physical profile? What is MPF?
A soldier is expected to meet height and weight standards unless a physician has stated that the soldier cannot lose weight (thyroid problems). And is expected to pass the APFT modified for any physical profile restrictions. The command can take action against a soldier for failure to meet/pass those standards. But they can't chapter you out for them if you have been determined physically unfit.
The USAF said that I was to be Permanently retired/unfit on October 25th, 2012. The USAF said that I was 40% unfit, while the VA says that I am 90% service related disabled. Legal told me to go to the formal board in January to see if I could argue some of my Cat II findings (50% Flat feet and 10% Right Shoulder) to Cat I. My physician also said that I should have received a rating for an L5/S1 disc condition and that my DVT should be a min. 20 % (Compression Stockings and Edema) and not the 0% it currently holds.
Legal told me to accept the current findings (40% unfit) at the formal board so that I could avoid any potential administrative actions for PT failures. They said that I could file the additional actions up to 3 years after I retired via the BMCR process. I accepted the Boards ruling on January 9th.
I was told I would receive a retirement 2-5 weeks later and was told to begin "Terminal leave" so that I wouldn't have another fitness failure. Someone at the wing called the Action Officer at SAF and told them to hold up my retirement paperwork, which forced me to take a test last week (I should have already been on terminal). Now they are drawing up an LOR which will begin an administrative action, which could conclude in a Dual action process discharge.
Additional notes:
1) Early in my career I was put on an Abdominal Circumference Profile. They said that it was my body type and that my waist measurement should be upward adjusted or waived completely. This profile changed when the USAF moved away from permanent profiles. It didn't matter to me at the time, because I could still pass the composite score. Now that the test has changed yet again I have asked the medical community to investigate it under the "Rare" circumstances clause for granting an A/C, but I have been ignored...not by the PCM, but by Force Health.
2) My PCM tried to put me on a Comprehensive Profile last year. I was supposed have my first leg surgery (I need two leg and a shoulder procedure), but my surgery is on hold because of the Deep Vein Thrombosis (I'm on blood thinners). I have been on blood thinners since last May (almost 10 months). I tried to do more cardio, but I had some scares when my hands and feet went numb. The neurologist also fears that I could cause Chronic Compartment Syndrome or worse to my right leg while it is swollen. The Internal Medicine clinic does not want me to hemorrhage the DVT loose which could result in a Pulmonary Embolism, Stroke, or Heart attack. My PCM again tried to put me on a Comprehensive Profile, but was again ignored by Force Health.
3) I do have a Thyroid problem, but they say the USAF currently considers it "sub-clinical". I am being treated for it as of this summer year. I take 30 MG of Tablets daily for the Thyroid condition.
The USAF said that I was to be Permanently retired/unfit on October 25th, 2012. The USAF said that I was 40% unfit, while the VA says that I am 90% service related disabled. Legal told me to go to the formal board in January to see if I could argue some of my Cat II findings (50% Flat feet and 10% Right Shoulder) to Cat I. My physician also said that I should have received a rating for an L5/S1 disc condition and that my DVT should be a min. 20 % (Compression Stockings and Edema) and not the 0% it currently holds.
Legal told me to accept the current findings (40% unfit) at the formal board so that I could avoid any potential administrative actions for PT failures. They said that I could file the additional actions up to 3 years after I retired via the BMCR process. I accepted the Boards ruling on January 9th.
I was told I would receive a retirement 2-5 weeks later and was told to begin "Terminal leave" so that I wouldn't have another fitness failure. Someone at the wing called the Action Officer at SAF and told them to hold up my retirement paperwork, which forced me to take a test last week (I should have already been on terminal). Now they are drawing up an LOR which will begin an administrative action, which could conclude in a Dual action process discharge.
Additional notes:
1) Early in my career I was put on an Abdominal Circumference Profile. They said that it was my body type and that my waist measurement should be upward adjusted or waived completely. This profile changed when the USAF moved away from permanent profiles. It didn't matter to me at the time, because I could still pass the composite score. Now that the test has changed yet again I have asked the medical community to investigate it under the "Rare" circumstances clause for granting an A/C, but I have been ignored...not by the PCM, but by Force Health.
2) My PCM tried to put me on a Comprehensive Profile last year. I was supposed have my first leg surgery (I need two leg and a shoulder procedure), but my surgery is on hold because of the Deep Vein Thrombosis (I'm on blood thinners). I have been on blood thinners since last May (almost 10 months). I tried to do more cardio, but I had some scares when my hands and feet went numb. The neurologist also fears that I could cause Chronic Compartment Syndrome or worse to my right leg while it is swollen. The Internal Medicine clinic does not want me to hemorrhage the DVT loose which could result in a Pulmonary Embolism, Stroke, or Heart attack. My PCM again tried to put me on a Comprehensive Profile, but was again ignored by Force Health.
3) I do have a Thyroid problem, but they say the USAF currently considers it "sub-clinical". I am being treated for it as of this summer year. I take 30 MG tablets daily for the Thyroid condition.
Update Med discharge papers rejected by AFPC....apparently the legal offices cheat loophole didnt work. If I continue P&R after six months it THEN proceeds to SecAF for decision. Ed mentioned a DODI that mirrored the army reg that states med discharges trump honorable admin discharges.....If I had this DODI reference I could end this BS game....can anyone help me out with the DODI reference?
Bump
Jason Perry
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Pressed for time at the moment....take a look at DoDI 1332.38. I don't have time at the moment to find the pinpoint cite, but if you can't find it, let me know.
Jason, need some advice on my situation. I messaged you personally through the conversation section. Thanks.
Here is my simple "plug n play" for people that deal with charges and the IDES.
1.) Determine if the service member has already entered into the IDES or not.
2.) Determine if the charges can result in a characterization of UOTHC.
Once those questions have been answered you look at what will happen as a a result of charges.
1.) When charges filed prior to entry into IDES: if the charges can result in an UOTHC characterization the service member is not supposed to be processed through the IDES. If the charges can not result in an UOTHC characterization the service member is entered into the IDES.
2.) If currently in the IDES and charges are brought against a service member: if the charges can result in an UOTHC characterization the service member's disability case should be suspended. If the charges can not result in an UOTHC characterization the disability process continues (dual action).
3.) At the conclusion of the PEB: If the service member is found fit, he/she can then be administratively separated based on those charges that were "on hold" during the IDES. If the service member is found unfit, he/she will be retired/separated based on the appropriate section of law relating to disability, unless the unfit finding is a result of a disability that existed prior to service and was not aggravated by service, occurred while in an unauthorized leave status, etc.
*There are some pieces not included, but this a general overview that might help explain the process and prevent over worrying.
*Length of service can have an impact (retirement eligible) and/or if the charges were a proximate result of the medical condition.
1.) Determine if the service member has already entered into the IDES or not.
2.) Determine if the charges can result in a characterization of UOTHC.
Once those questions have been answered you look at what will happen as a a result of charges.
1.) When charges filed prior to entry into IDES: if the charges can result in an UOTHC characterization the service member is not supposed to be processed through the IDES. If the charges can not result in an UOTHC characterization the service member is entered into the IDES.
2.) If currently in the IDES and charges are brought against a service member: if the charges can result in an UOTHC characterization the service member's disability case should be suspended. If the charges can not result in an UOTHC characterization the disability process continues (dual action).
3.) At the conclusion of the PEB: If the service member is found fit, he/she can then be administratively separated based on those charges that were "on hold" during the IDES. If the service member is found unfit, he/she will be retired/separated based on the appropriate section of law relating to disability, unless the unfit finding is a result of a disability that existed prior to service and was not aggravated by service, occurred while in an unauthorized leave status, etc.
*There are some pieces not included, but this a general overview that might help explain the process and prevent over worrying.
*Length of service can have an impact (retirement eligible) and/or if the charges were a proximate result of the medical condition.
Pittpan.....the legal office told me and my adc that your last sentence "If the service member is found unfit, he/she will be retired/separated based on the appropriate section of law relating to disability" is not true. They say that the dual action cases must be sent to the SecAF for the final decision...which he/she can chose either separation...even though the admin separation is a PT failure/honorable discharge. Thats why I am looking for a DODI reference.....since the AFI is so ambiguous that you cannot use it to support your statement.
Yooper,
There is no where in the law, directives, or regulations that states "specifically" everything I have stated. There is also nothing that definitively states the opposite. Because of the ambiguity of it all SecAF will make the final decision, but because of the ambiguity if they attempt to deny something (retirement) based on ambiguity it is subject to much scrutiny.
DoDi 1332.38 covers a lot of information. It's not reasonable to include every situation that a SM could/will come across.
If you look at dual action cases where a SM was found unfit and the charge was non-punitive you'll see that medical trumps it (there could be situations to the contrary). Could that be referenced somewhere verbatim? Don't know, but they can't reference anything that says they are allowed to deny you something either.
It's frustrating and I wouldn't want to be dealing with more "unknowns" than you already are, but understand people aren't painting just a pretty picture. Jason and Ed are the subject matter experts........Jason works in military disability law and Ed worked with/on the BCMR for years. They both have significant experience and expertise. I would defer to them.
Let the system play out and you'll come out on top as long as you don't do something that jeopardizes it.
There is no where in the law, directives, or regulations that states "specifically" everything I have stated. There is also nothing that definitively states the opposite. Because of the ambiguity of it all SecAF will make the final decision, but because of the ambiguity if they attempt to deny something (retirement) based on ambiguity it is subject to much scrutiny.
DoDi 1332.38 covers a lot of information. It's not reasonable to include every situation that a SM could/will come across.
If you look at dual action cases where a SM was found unfit and the charge was non-punitive you'll see that medical trumps it (there could be situations to the contrary). Could that be referenced somewhere verbatim? Don't know, but they can't reference anything that says they are allowed to deny you something either.
It's frustrating and I wouldn't want to be dealing with more "unknowns" than you already are, but understand people aren't painting just a pretty picture. Jason and Ed are the subject matter experts........Jason works in military disability law and Ed worked with/on the BCMR for years. They both have significant experience and expertise. I would defer to them.
Let the system play out and you'll come out on top as long as you don't do something that jeopardizes it.
Jason Perry
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This is how it plays out...as an AF member, you will have to go through the SAFPC determination process. I suppose it is technically possible to get an adverse decision (but, I think that would be legally incorrect for anything but an approval of your retirement to go through. I have never seen a case where the retirement was not approved in the case with a member dual processed for PFA failures).
Here is what the DoDI says:
DoDI 1332.38:
"E3.P2.4. Ineligibility for Referral.
Service members are ineligible for physical disability evaluation, when:
E3.P2.4.1. The member's developmental or constitutional condition, circumstance and defects not constituting a physical disability. (See enclosure 5 for a comprehensive listing.)
E3.P2.4.2. Except as provided under Service regulations, the member is pending an approved, unsuspended, punitive discharge or dismissal.
E3.P2.4.3. Except as provided under Service regulations, the member is pending separation under provisions that authorize a characterization of service of Under Other Than Honorable (UOTH). This restriction is based on the provisions under which the member is being separated and not on the actual characterization the member receives. For example, because separation for misconduct authorizes a UOTH, a member who is being separated for misconduct with a general
characterization is ineligible for referral into the DES except as provided under the regulations of the respective Service.
E3.P2.4.4. Service regulations should normally provide for referral to the DES of those members designated in subsections E3.P2.4.2. and E3.P2.4.3., above, when the medical impairment or extenuating circumstances may be the cause of the conduct."
So, while not explicit in the DoDI that you CANNOT be separated on the basis of PFA failure, para. E3.P2.4.3. states that you are eligible for referral (as PFA failures and separations based on them do not give rise to a UOTH characterization of service. However, when read in concert with the actual statute (10 USC 1201,et. seq.) I think that the law clearly requires retirement in the situation of a member dual processed for non-misconduct administrative discharge and/or based on PFA failure. (Don't let the permissive term "may" confuse you...there is case law that says that this term actually means that the member is entitled to disability pay when they meet the requirements of being found unfit with 30%). Also, see below my comments on reading the corollary of statements with regard to rules of statutory and regulatory construction- the fact that only UOTH characterizations are specifically mentioned as making members ineligible for DES referral suggest strongly that all others are both eligible and should gain the entitlements that flow from such determinations....much of this is unclear if an actual adverse decision in your case were to issue- mainly because it does not happen. I am aware of no cases where this has actually happened. Thus, no challenges to it because it never happens (a caveat- a lot of screwed up things do happen that are never reported or challenged. I don't mean to say that you face zero chances of an error- mistakes are made all the time. But, this is not a prevalent issue. Why? Because in the every case I have ever seen, the AF gets the final determination right. There may be exceptions, but I won't/can't go and research a possibility when the overwhelming probability says you will be fine after the process plays out).
So, then turn to the AF Reg. AFI 36-3212, says:
"1.4.4. Dual Action. Process as dual action, disability cases on members with an unfit finding who are also pending administrative separation (including Second Lieutenants being processed for "not qualified for promotion"), or who apply for nondisability retirement or discharge in lieu of CM action according to AFIs 36-3203, Service Retirements, 36-3206, Administrative Discharge Procedures, 36-3207, Separating Commissioned Officers, 36-3208, Administrative Separation of Airmen or 36-3209, Separation Procedures for Air National Guard and Air Force Reserve Members. SAFPC makes the final disposition. If SAFPC does not accept the retirement or discharge in lieu of CM action, the CM will proceed. If the sentence does not result in punitive discharge, then the disability case can be processed. NOTE: Administrative action continues in any disability case that results in a fit determination."
If the SAFPC determination results in a separation based on PFA failure rather than a retirement found by the PEB, then challenge would lie with the last bolded statement. While it states that administrative action will continue in fit cases, the corollary is that it will not in other cases (i.e, where you have an unfit and retirement finding).
Additionally, AFI 36-2905 states, :
"9.1.1.2. Upon receipt of a Medical Evaluation Board (MEB) permanent exemption, a member is not subject to adverse personnel action for inability to take the FA."
This is not a model of clarity. But, should the SAFPC determination come back with a finding to continue separation and to void the PEB finding (which, by itself would be open to challenge based on precedence of Secretarial finding under 10 USC 1201, et. seq.), I think it is a strong argument that the provisions of 9.1.1.2, while not implicating the PEB, are subsumed by the finding of the PEB that you are unfit (and this circles back to the 10 USC link and that is superior authority above the AF regs).
Bottom line, I think that the AF regs are valid in saying that the SAFPC can make a determination on this point. (It is a general principle that any administrative agency can make rules in the absence of a Congressional mandate to the contrary). However, any adverse determination would be very challengeable as contrary to the DoDI and more so as contrary to the statute. Why the AF chooses to jump through these extra hoops is unknown. The Army reg is much clearer:
AR 635-200, paragraph 1–33. Disposition through medical channels
a. Except in separation actions under chapter 10 and as provided in para 1–33b, disposition through medical channels takes precedence over administrative separation processing.
The Navy reg is a little more clear:
SECNAVINST 1850.4E:
Para. 1002:
"b. This instruction applies to all members of the active force, the reserve component, members placed on the TDRL, and former officers retired or released from active duty without pay for physical disability. Processing for punitive discharge and processing for administrative discharge for misconduct takes precedence over processing for disability."
(Read under normal legal rules for statutory and regulatory construction, the fact that the reg. states that punitive discharge takes precedence means that non-punitive administrative discharge does not take precedence, so the PEB does take precedence).
I don't think you have any ammunition from the above to say, "You can't dual process my case." The AF regs specifically allow for it. However, based on the statute, the above regulations (at least the DoDI, and the AFIs), plus what I have seen over the years, I don't think you have anything to worry about. I do think that as a general principle overall DoD-wide, disability processing takes precedence over non-misconduct separations. And, I think that Air Force wide, this is what actually happens. I think that the Army has made this most explicit and Soldiers in your circumstance would have ammunition to say they can't dual process their final disposition. I feel the same, but slightly less strong, about Sailors and Marines. In AF cases, I think you have to go through the SAFPC determination, however, I think the result is the same.
If you do get an adverse decision, please let us know. I am confident that you will get a good final outcome, though.
Here is what the DoDI says:
DoDI 1332.38:
"E3.P2.4. Ineligibility for Referral.
Service members are ineligible for physical disability evaluation, when:
E3.P2.4.1. The member's developmental or constitutional condition, circumstance and defects not constituting a physical disability. (See enclosure 5 for a comprehensive listing.)
E3.P2.4.2. Except as provided under Service regulations, the member is pending an approved, unsuspended, punitive discharge or dismissal.
E3.P2.4.3. Except as provided under Service regulations, the member is pending separation under provisions that authorize a characterization of service of Under Other Than Honorable (UOTH). This restriction is based on the provisions under which the member is being separated and not on the actual characterization the member receives. For example, because separation for misconduct authorizes a UOTH, a member who is being separated for misconduct with a general
characterization is ineligible for referral into the DES except as provided under the regulations of the respective Service.
E3.P2.4.4. Service regulations should normally provide for referral to the DES of those members designated in subsections E3.P2.4.2. and E3.P2.4.3., above, when the medical impairment or extenuating circumstances may be the cause of the conduct."
So, while not explicit in the DoDI that you CANNOT be separated on the basis of PFA failure, para. E3.P2.4.3. states that you are eligible for referral (as PFA failures and separations based on them do not give rise to a UOTH characterization of service. However, when read in concert with the actual statute (10 USC 1201,et. seq.) I think that the law clearly requires retirement in the situation of a member dual processed for non-misconduct administrative discharge and/or based on PFA failure. (Don't let the permissive term "may" confuse you...there is case law that says that this term actually means that the member is entitled to disability pay when they meet the requirements of being found unfit with 30%). Also, see below my comments on reading the corollary of statements with regard to rules of statutory and regulatory construction- the fact that only UOTH characterizations are specifically mentioned as making members ineligible for DES referral suggest strongly that all others are both eligible and should gain the entitlements that flow from such determinations....much of this is unclear if an actual adverse decision in your case were to issue- mainly because it does not happen. I am aware of no cases where this has actually happened. Thus, no challenges to it because it never happens (a caveat- a lot of screwed up things do happen that are never reported or challenged. I don't mean to say that you face zero chances of an error- mistakes are made all the time. But, this is not a prevalent issue. Why? Because in the every case I have ever seen, the AF gets the final determination right. There may be exceptions, but I won't/can't go and research a possibility when the overwhelming probability says you will be fine after the process plays out).
So, then turn to the AF Reg. AFI 36-3212, says:
"1.4.4. Dual Action. Process as dual action, disability cases on members with an unfit finding who are also pending administrative separation (including Second Lieutenants being processed for "not qualified for promotion"), or who apply for nondisability retirement or discharge in lieu of CM action according to AFIs 36-3203, Service Retirements, 36-3206, Administrative Discharge Procedures, 36-3207, Separating Commissioned Officers, 36-3208, Administrative Separation of Airmen or 36-3209, Separation Procedures for Air National Guard and Air Force Reserve Members. SAFPC makes the final disposition. If SAFPC does not accept the retirement or discharge in lieu of CM action, the CM will proceed. If the sentence does not result in punitive discharge, then the disability case can be processed. NOTE: Administrative action continues in any disability case that results in a fit determination."
If the SAFPC determination results in a separation based on PFA failure rather than a retirement found by the PEB, then challenge would lie with the last bolded statement. While it states that administrative action will continue in fit cases, the corollary is that it will not in other cases (i.e, where you have an unfit and retirement finding).
Additionally, AFI 36-2905 states, :
"9.1.1.2. Upon receipt of a Medical Evaluation Board (MEB) permanent exemption, a member is not subject to adverse personnel action for inability to take the FA."
This is not a model of clarity. But, should the SAFPC determination come back with a finding to continue separation and to void the PEB finding (which, by itself would be open to challenge based on precedence of Secretarial finding under 10 USC 1201, et. seq.), I think it is a strong argument that the provisions of 9.1.1.2, while not implicating the PEB, are subsumed by the finding of the PEB that you are unfit (and this circles back to the 10 USC link and that is superior authority above the AF regs).
Bottom line, I think that the AF regs are valid in saying that the SAFPC can make a determination on this point. (It is a general principle that any administrative agency can make rules in the absence of a Congressional mandate to the contrary). However, any adverse determination would be very challengeable as contrary to the DoDI and more so as contrary to the statute. Why the AF chooses to jump through these extra hoops is unknown. The Army reg is much clearer:
AR 635-200, paragraph 1–33. Disposition through medical channels
a. Except in separation actions under chapter 10 and as provided in para 1–33b, disposition through medical channels takes precedence over administrative separation processing.
The Navy reg is a little more clear:
SECNAVINST 1850.4E:
Para. 1002:
"b. This instruction applies to all members of the active force, the reserve component, members placed on the TDRL, and former officers retired or released from active duty without pay for physical disability. Processing for punitive discharge and processing for administrative discharge for misconduct takes precedence over processing for disability."
(Read under normal legal rules for statutory and regulatory construction, the fact that the reg. states that punitive discharge takes precedence means that non-punitive administrative discharge does not take precedence, so the PEB does take precedence).
I don't think you have any ammunition from the above to say, "You can't dual process my case." The AF regs specifically allow for it. However, based on the statute, the above regulations (at least the DoDI, and the AFIs), plus what I have seen over the years, I don't think you have anything to worry about. I do think that as a general principle overall DoD-wide, disability processing takes precedence over non-misconduct separations. And, I think that Air Force wide, this is what actually happens. I think that the Army has made this most explicit and Soldiers in your circumstance would have ammunition to say they can't dual process their final disposition. I feel the same, but slightly less strong, about Sailors and Marines. In AF cases, I think you have to go through the SAFPC determination, however, I think the result is the same.
If you do get an adverse decision, please let us know. I am confident that you will get a good final outcome, though.
Mr Perry, I want to sincerely thank you for this site, the resources found within, and your personal advice that has not only educated me, but has been essential in allowing me to understand fully where I stand in this process. Not only does this effect my state of mind, and release some of the stress and pressure of going through these discharge processes, but it effectively changes people's lives, and financial and emotional states. I do have a slight hope for my case as, my ADC has talked to the legal office, my commander, and the base commander, and they are all on board for a dismissal of the administrative discharge as to speed up my medical discharge. I am now waiting on the technical and legal nuances of them trying to do so. So my wife, my son, and I want to thank you for the assistance this site has given me, and I am thinking positive for a positive outcome in the future.
Jason Perry
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Glad to help! That's the point of this site. I think you will be fine in the end, but if not, feel free to post.
Pay it forward, bud!
Latest update: The first time legal "Helped" they put me on probation/rehabilitation thinking I would be able to outprocess medically then. Unfortunately that made things worse as it added six months of limbo, as you cannot outprocess while on Probation/Rehabilitation. My ADC came to the rescue next as he proposed drafting a request for the base Commander to drop the admin discharge outright so I could medically separate. My base Commander did sign the paperwork today to drop the admin, and it has been routed through legal to AFPC today. I am currently waiting confirmation by legal for my PEBLO to resubmit the medical discharge. As I am looking forward to finally be done I wish luck to others in the dual action process, and inform them that the base commander has the power to drop the admin separation......so try by pushing the point that the average wait time for the SecAf is months.....so they can get rid of you sooner by dropping the admin discharge.....Good Luck!