Unsure Where to Go...

R

raptorak

PEB Forum Regular Member
Registered Member
I am looking for clarification as to what I should be doing. To help, here's a short story (feel free to ask any questions, as I'm not sure what all is needed).

In August of 2006, I started Basic Training. Due to an injury sustained during training, I was discharged in November of 2006. At the time, this was classified as "scoliosis" and was therefore declared as being "EPTS." As a result, I was never sent to the PEB/MEB, at least that I recall. Basically I went through physical therapy, after which the people that were administering it found that it was causing the problem to become worse. After that, I was scheduled many hospital/doctor visits to do the normal exit exams (as far as I know).

I never pushed the issue until 2009 because it was stated that scoliosis (my diagnosis) was hereditary and there is nothing you can do about it. In 2009, I had a doctor ask about my issues and such, and disagreed with the finding (I've had x-rays and MRI's from different doctors and all disagree with the scoliosis claim). Furthermore, they all agree that the problems are caused by trauma, and have related it directly to the military incident. The VA rated me at 20% in 2009 and this was increased in 2013 (this year) to 60% for the main disabilities, with secondary ones still pending. Note that all of these are the reason why I was discharged in the first place/found unfit for service. The disability has remained static from the day the incident occurred until today.

At this point I'm not sure what to do. I was recommended by someone at the DAV to go through the PDBR process, but since I didn't (that I know of) go through the PEB process, wouldn't that make me ineligible?

More or less to shorten this, I was given an EPTS for a condition that was not existing prior to service. As a result, I wasn't evaluated for medical retirement, although I should have been. I recently got the uncharacterized discharge boosted to an Honorable, but I don't know where to go from here.

Thanks in advance.
 
Welcome to the PEB Forum! :)

Hopefully, other members with specific knowledge and/or pinpointed experiences shall provide feedback soon.

Best Wishes!
 
Raptor,

One area that you should look at is the Borad of Correction Military Records (BCMR). There is a ton of information which you can research in order to help you cause. I would also ask the mods on this site as they are super helpful and informed on cases such as yours. I wish you the best of luck.

VR,
Frank


raptorak said:
I am looking for clarification as to what I should be doing. To help, here's a short story (feel free to ask any questions, as I'm not sure what all is needed).

In August of 2006, I started Basic Training. Due to an injury sustained during training, I was discharged in November of 2006. At the time, this was classified as "scoliosis" and was therefore declared as being "EPTS." As a result, I was never sent to the PEB/MEB, at least that I recall. Basically I went through physical therapy, after which the people that were administering it found that it was causing the problem to become worse. After that, I was scheduled many hospital/doctor visits to do the normal exit exams (as far as I know).

I never pushed the issue until 2009 because it was stated that scoliosis (my diagnosis) was hereditary and there is nothing you can do about it. In 2009, I had a doctor ask about my issues and such, and disagreed with the finding (I've had x-rays and MRI's from different doctors and all disagree with the scoliosis claim). Furthermore, they all agree that the problems are caused by trauma, and have related it directly to the military incident. The VA rated me at 20% in 2009 and this was increased in 2013 (this year) to 60% for the main disabilities, with secondary ones still pending. Note that all of these are the reason why I was discharged in the first place/found unfit for service. The disability has remained static from the day the incident occurred until today.

At this point I'm not sure what to do. I was recommended by someone at the DAV to go through the PDBR process, but since I didn't (that I know of) go through the PEB process, wouldn't that make me ineligible?

More or less to shorten this, I was given an EPTS for a condition that was not existing prior to service. As a result, I wasn't evaluated for medical retirement, although I should have been. I recently got the uncharacterized discharge boosted to an Honorable, but I don't know where to go from here.


Thanks in advance.
Click to expand...
 
franky said:
Raptor,

One area that you should look at is the Borad of Correction Military Records (BCMR). There is a ton of information which you can research in order to help you cause. I would also ask the mods on this site as they are super helpful and informed on cases such as yours. I wish you the best of luck.

VR,
Frank
Click to expand...

Thanks. I had looked into the BCMR, but as far as I'm understanding they can't take a non-medical and turn it medical.

I think the biggest issue here is that it's hard to find others in the same situation (being put out for EPTS erroneously).

As of right now it looks like the APDRB may be the only option, although I am also a little uneasy about filling out all the paperwork/submission on my own as it's definitely important to ensure everything is done right the first time (and they want as detailed information as possible as to why I disagree with the discharge type, finding all the areas in my records to help prove my point, etc.).
 
raptorak said:
Thanks. I had looked into the BCMR, but as far as I'm understanding they can't take a non-medical and turn it medical.
Click to expand...

Actually, they can. I won my case at the BCNR and turned a regular honorable into a medical retirement. It all depends on the facts in your case. If you do decide to go the BCMR route, keep in mind that it will likely take a very long time to get a decision. My case took 1.5 years to process. Best of luck!
 
navy1305 said:
Actually, they can. I won my case at the BCNR and turned a regular honorable into a medical retirement. It all depends on the facts in your case. If you do decide to go the BCMR route, keep in mind that it will likely take a very long time to get a decision. My case took 1.5 years to process. Best of luck!
Click to expand...

Congratulations...this is a true good news story! :)

Best Wishes!
 
navy1305 said:
Actually, they can. I won my case at the BCNR and turned a regular honorable into a medical retirement. It all depends on the facts in your case. If you do decide to go the BCMR route, keep in mind that it will likely take a very long time to get a decision. My case took 1.5 years to process. Best of luck!
Click to expand...

Thanks for the info. Now I'm wondering which route would be "best" for a first go. In my eyes, the case is pretty obvious: the medical reason I was discharged for isn't even something I have. The problem is how to go about proving that.

As far as I know, my medical records don't explicitly state why the discharge took place. I'm going to be going back through them again though to organize the papers and such (it's a pretty thick folder!). I'm hoping I just missed it somehow.

When you took up your case with the BCNR, did you just include relevant military & private medical records that showed the incorrect information? My idea for my claim (regardless of which path I should take) is:

1) Get all medical records (private/military/VA) together
2) Find injustices/contradictions between the two sets
3) Write up an explanation of where the errors are/what they are, include the specific documents that show them, and highlight somehow the areas to be looking at

Essentially, treating it like a court case where you want to make everything as cut-and-dry for the judge as possible so all they have to do is say "okay, I see your arguments... *flips through pages to marked areas* okay, I see what you're talking about... here's my ruling."

Is this the proper way to handle the situation, or is there more/less to it than that?

The time a venue takes is understandable. The VA has taken a while too, "hurry up and wait." But because of this, I want to be sure I have everything that's applicable taken care of the first time. Would suck to go through a couple year wait just to find out something that could have made the case a success was missing and that I have to re-do it all (and sustain the wait again) because of a small error.
 
raptorak said:
As far as I know, my medical records don't explicitly state why the discharge took place.
Click to expand...
What does your DD-214 state?

raptorak said:
When you took up your case with the BCNR, did you just include relevant military & private medical records that showed the incorrect information?
Click to expand...
In this case before the BCNR (I have won 3 different cases so far) I sent in what I thought were relevant records and in the DD-149 filled in the section with my VA file info. The BCNR requested my C-file from the VA regional office. The VA took their sweet time to respond and I later found out the file they sent was not complete. Lesson: send everything yourself.

I am not a lawyer and don't even play one on TV so I have no advice as to which board to apply to. However, I do know that there is a (waiveable, with good reason) 3 year time limit for the BCMR from the date of discovery of the injustice. The other boards may have different time limits and rules.
 
navy1305 said:
What does your DD-214 state?


In this case before the BCNR (I have won 3 different cases so far) I sent in what I thought were relevant records and in the DD-149 filled in the section with my VA file info. The BCNR requested my C-file from the VA regional office. The VA took their sweet time to respond and I later found out the file they sent was not complete. Lesson: send everything yourself.

I am not a lawyer and don't even play one on TV so I have no advice as to which board to apply to. However, I do know that there is a (waiveable, with good reason) 3 year time limit for the BCMR from the date of discovery of the injustice. The other boards may have different time limits and rules.
Click to expand...

My DD-214 says:

Type of Separation: Discharge
Character of Service: Honorable [this was uncharacterized but I was able to get it upgraded]
Separation Authority: AR 635-200, PARA 5-11
Separation Code: JFW
ReEntry Code: 3
Narrative Reason for Separation: Failed Medical/Physical/Procurement Standards
 
So I looked at the current AR 635-200, para 5-11 and the first section says:

a. Soldiers who were not medically qualified under procurement medical fitness standards when accepted for enlistment or who became medically disqualified under these standards prior to entry on AD or ADT for initial entry training, may be separated. Such conditions must be discovered during the first 6 months of AD. Such findings will result in an entrance physical standards board. This board, which must be convened within the Soldier’s first 6 months of AD, takes the place of the notification procedure (para 2–2) required for separation under this chapter.
Click to expand...

Did you have an entrance physical standards board? If so, what does that paperwork say?
 
navy1305 said:
So I looked at the current AR 635-200, para 5-11 and the first section says:



Did you have an entrance physical standards board? If so, what does that paperwork say?
Click to expand...

As far as I can tell, and going through paperwork, the answer to this is no. I had a very short examination but I'm not seeing anything related to it in my records (basically it was a blood test and a minute or two with a physician).
 
BCMR is the correct board to appeal this through based on what you have stated. (PDBR would only apply if you went through PEB and were separated with severance pay).

Sounds like you are tracking on the main ideas of presenting your case. I would also tie in your arguments/facts/evidence with the relevant regulations. Remember, the focus is on your condition at the time of your separation (your later worsening of misdiagnosed condition is unlikely to be relevant). Also, I would make sure you explicitly ask for the relief you want- disability retirement, wrongful discharge, or either in the alternative, for example (what you are potentially entitled to is a complicated issue...it is hard to know what is best in your case).

Since you never had a PEB (apparently), it appears that your statute of limitations on a disability retirement claim has not run. However, for a wrongful discharge claim, it has. This means that a judicial review will only be available for retirement claims (if you are unsuccessful at BCMR).

Good luck!
 
From what I understand in your case. You did
not complete your first term? DoD and VA
have regs on this matter I can't remember the
number of the MED/PEB for DOD. I'm sure someone will
dive in. Second your in for a long fight if your trying
to get into the chpt 61 club for you conditions. If
you have documents in hand and other Doctors
claiming it related to your time in service you well
have a chance for a %.
 
@Jason - thanks for the confirmation. I'll try to get everything ready for the BCMR. Regarding "worsening of misdiagnosed condition," it has remained static.

@Johndelta - You're correct in regards to the lack of completing the first term. About having other doctors state that it was related to my time in service, that shouldn't be a problem. And for the long fight, I'm already prepared for that. It's tough but worth fighting for.
 
I was given an EPTS rating from basic in 2003. I used the FDRB in 2012. This may be an option as well. I won my case. One of the main arguments we used was that I was given a 40% rating from the V.A. as soon as I was discharge.

This board is not the same as the PDRB, as I did not qualify for it and neither would you. A lot of people have never heard of the FDRB and I was the first enlisted person in the Navy/Marines to ever use such a board.

http://www.pebforum.com/site/threads/disability-review-board-10-usc-1554.11495/

This is my opinion but that 20% rating from 2006 to 2013 is going to hurt you. I think the best you could do is get them to change it to 20% severance pay. However, the V.A. will just recoup that money anyways. In theory if you were placed on TDRL to monitor your condition for 5 years what would be the correct rating in 2011?
 
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