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Activated Reservist LOD/MEB and ASTS Oversight!!!

rickman

PEB Forum Regular Member
PEB Forum Veteran
I am a 26 year TR that just returned from Iraq in January 2011 after a 4 month deployment and I am still on activation orders (downtime and leave).

I had 14 years of AD time (1984-1999) and came straight into the Reserves. In 2005, I strained my back on active duty while deployed to Kuwait. I documented the injury on my PDHA. In late 2009, I injured my back again (not in status) and started feeling shooting pains down my right leg. I had a similar episode in 2000 (again, not in status)after slipping (not falling) and had pain shooting down the back of my left leg that eventually went away and has not returned. After the injury in 2009, I went to my PCM in Reserve status and was diagnosed with:

Lumbar spondylosis
Lumbar Stenosis
Lumbar radiculopathy
Low back pain
Lumbar Disc Displacement

I reported to the ASTS at my homestation and they initiated an LOD based on the condition I had in 2005 and strains I reported while on active duty before joining the Reserves. A participation waiver was also granted during the LOD determination. I was scheduled to deploy to Iraq in September 2010. During my course of treatment (home therapy), the pain did not subside. I started working my abdomin heavily at the gym and my condition improved. My civilian doctor cleared me and so did the ASTS doctor.

I deployed to Iraq and after I started an agressive exercise program there (including unit PT), my back pain and leg pain returned. I took a break from PT for one week. The pain subsided and I started PT again. The pain returned. I took two weeks off and started again. The pain returned. Frustrated - I gave up. During my deployment, I received an e-mail stating my LOD was determined EPTS-Service Aggravated. Before I redeployed, I documented this condition on my PDHA. The doctor did nothing for me in the AOR.

When I returned to homestation, I spoke with ASTS and they told me to come in while I was on downtime to see the ASTS doctor.

They found an e-mail in my medical records (which I had no knowledge of) stating no matter what the ASTS medical personnel decided, the participation waiver indicated they could not clear me to depart homestation until the end of September 2010. I deployed in early September 2010!!!

After I returned from deployment, the ASTS doctor initiated a new LOD and also started my process for MEB.

My question is how can the consequences for the medical oversight (clearing me for deployment while limited to homestation) play in my favor here.

Also, I reminded everyone (ASTS, MPF, unit ART, CC) that I must remain on active duty as outlined in USC 10 > Subtitle A > Part II > Ch 61 > 1218. I am being told that my mobilization orders have to be ended and I must be placed under CMAS orders. Is that legal?
 

Jason Perry

Benevolent Leader
Site Founder
Staff Member
PEB Forum Veteran
Registered Member
rickman,

Welcome! I think there is an easier answer to your "issue." Look at the new version of AFI 36-2910. AFI 36-2910 Line of Duty (April 5, 2010) - Downloads - Physical Evaluation Board Forum . The most significant change is that it explicitly applies the eight year rule to line of duty determinations. Your condition should be found to be in the line of duty no matter what (based on the facts you provided).

The main issue with orders is that you must remain on orders. I think that it does not matter what they administratively call the orders, there is no violation of the law if you retain your pay and allowances.
 

rickman

PEB Forum Regular Member
PEB Forum Veteran
UPDATE! I have had to file an IG complaint with AFRC based on some actions and inactions. The LOD clerk failed twice to send the current documentation so AFRC denied the CMAS orders request. Medical also denied starting a new LOD because they claim the existing LOD in the system covers the condition I have. When I saw the doctor at Medical in February, they told me since the condition was aggravated, a new LOD had to be initiated. They are not recognizing the condition was aggravated. I got the updated paperwork turned in explaining the pain returned after I arrived in the AOR and now they are saying they may put me on CMAS orders for a limited time so I can continue physical therapy.

I feel Medical is trying to cover up for their mistake in clearing me to deploy last year.

The new law initated last October is being ignored so I am seriously considering sending a request in to my Senator to start an investigation into the matter. Before I take that route, does anyone have any advice on who else may be able to help?
 

Ruptured Duck

Moderator
PEB Forum Veteran
As Jason has pointed out, here is the Law concerning ARC members who are injured while on orders for 30 days or more:

Pursuant to 37 U.S.C. § 204(a)-(b);

(a) The following persons are entitled to the basic pay of the pay grade to which assigned or distributed, in accordance with their years of service computed under section 205 of this title—
(1) a member of a uniformed service who is on active duty; and
(2) a member of a uniformed service, or a member of the National Guard who is not a Reserve of the Army or the Air Force, who is participating in full-time training, training duty with pay, or other full-time duty, provided by law, including participation in exercises or the performance of duty under section 10302, 10305, 10502, or 12402 of title 10, or section503, 504, 505, or 506 of title 32.
(b) For the purposes of subsection (a), under regulations prescribed by the President, the time necessary for a member of a uniformed service who is called or ordered to active duty for a period of more than 30 days to travel from his home to his first duty station and from his last duty station to his home, by the mode of transportation authorized in his call or orders, is considered active duty.

DoDI 1241.2;

6.6.3.2. A Reserve component member on active duty under a call or order to active duty specifying a period of 31 days or more, who incurs or aggravates an injury, illness, or disease in the line of duty shall, with the member's consent, be continued on active duty upon the expiration of call or order to active duty until the member is determined fit for duty or the member is separated or retired as a result of a Disability Evaluation System determination.

AFI36-3212;

8.6.2. ARC members who incur or aggravate an injury, illness or disease in the line of duty while onorders for more than 30 days are not involuntarily released from those orders until final disposition oftheir disability case. These members' entitlement to full pay and allowances and benefits continue tothe same extent provided by law or regulation to regular component members.
 

Ruptured Duck

Moderator
PEB Forum Veteran
Since you are Air Force here is a SHORT list of what you need to start down loading and begin reading/adding to your library:

AFI36-2910 (Line of duty) The start of everything.
AFI10-203 (Duty limiting conditions) Profiles.
AFI41-210 (MEB) How medical admin types are suppose to do a MEB-Chapter 10.
AFI48-123 (MEB) What conditions call for a MEB. This is what triggers a MEB from a AF doctor.
AFI36-3212 (PEB) This is the reg on PEB's.
AFI36-3208 Admin separations.
DoDI 1332.38 (DoD reg on the DES)
38 USC part 4 (VA Schedule for rating disabilities) VASRD
10 USC Chapter 61 (This is the law on disability retirements)
Etc., Etc., Etc...
 

rickman

PEB Forum Regular Member
PEB Forum Veteran
Thanks all! I've pointed these things out and they are not listening. It's frustrating trying to get these people to comply with regulations.
 

rickman

PEB Forum Regular Member
PEB Forum Veteran
The fight continues. Since my last posting, the following has happened:

1. Medical states that my condition is not grounds for an MEB/PEB because the restrictions have to exist for > 365 days. A new LOD will not be initiated because an LOD already exists for my condition. My argument that the condition was aggravated is being ignored so I have scheduled another MRI for this week with a TriCare provider so they can compare the previous radiological report with the new MRI results. Maybe that will help?

2. The IG looked over my case and stated that the current LOD closed out in September 2010 (while I was deployed) and since it is for the same condition, it carries over to this incident. They ignored the point in the LOD Instruction (AFI 36-2910) that states a new LOD is required when a condition is aggravated. They told me that my old LOD will provide justification for Tricare to pick up the bill on my back issue and that I should not have to worry about paying out of pocket for the condition. They also state that I am entitled to Incap pay and can fill out paperwork to file that claim. I know to do this, I have to prove I was not capable of returning to my civilian employment. I read on this forum I should not take Incap pay so I am not considering this based on that reason plus my line of work is administrative and there is no justification to claim this pay. The bottom line which tripped me out is when the IG stated they are aware of the law (USC Title 10 > Subtitle A > Part II > Ch 61 > 1218) but state "that's not necessarily the way it works".

3. I now have to go back to my civilian job to pay bills and support my family. I guess the next step is to write to my senator to have them initiate an inquiry. The IG stated that will take a long time and that they (the Air Force Reserve) will give the senator's office the same story about how the LOD carries over to this incident.

Now that this is dragged out, two problems will have to be dealt with. Since my activation orders were amended to end on 9 February 2011, the previous amendment that paid me until my original orders end date of 24 February will cause DFAS to initate overpayment collection actions. Originally when I was told my orders would be extended, I cancelled my leave since I was busy with medical. So all the time I spent with medical and at the unit during my leave period will have to be charged as leave (working vacation). Or I can forfeit my leave to pay back the other entitlements paid while on "present for duty" status (10-24 February).

Argh!
 

Ruptured Duck

Moderator
PEB Forum Veteran
You have an absolute right to remain on active duty. The MUST issue you MEDCON orders. However, you are citing the wrong law that covers you if you are on orders for more than 30 day and become injured or sick.

What you have here is a potential "wrongful discharge" law suit against the United States e.g USAF. (I know this because Jason and I filed for wrongful discharge and won)

37 U.S.C. 204 is the Military pay Act the establishes you on active duty. (Primary Law) This is what allows you to sue the Govt. in the United States Court of Federal Claims (USCFC).

This is what is known as "Money mandating".

DoDI 1241.2 is the DoD instruction that directs that you be retained (Secondary Law)

AFI36-3212 is the PEB AFI that also directs that you be retained on AD until your case is resolved. (Tertiary Law)

About your LOD(s)- that issue falls under 10 U.S.C. 1207a (E.G. The eight year rule). This means that your injuries are all line of duty even if they try to claim them EPTS, (which is a common ARC/ANG mistake). At the minimum they are "service aggravated" which, since you have more that 8 years of AD, your injuries are now the same as in the LOD.

The bottom line is that you are not alone. "They" do this all the time in to both ARC and ANG members with the anticipation you will just go away...

..and that's how they get away with it.

If you want to fight I'll be more than happy to help. The bottom line is that YOU have to be willing to pony up and take the system on. You will win in the end.


As far as the IG make sure you are filling with the SECAF IG and not your local IG. You want to go strait to the top and let the problem get pushed from top down because it NEVER goes upward.
 

rickman

PEB Forum Regular Member
PEB Forum Veteran
Thanks for the encouraging words Ruptured Duck! I went to the AFRC IG and was not impressed with them at all. This Captain I was dealing with did not have the knowledge to assist. She would call people in A1 and at the SG office and she would relay what they said which in most cases made no sense. I will file a new complaint with the SecAF IG next.

BTW, what first steps did you take to file suit in USCFC? I would assume I would have to hire a lawyer to file for me or can you file yourself?

What were your legal costs and were you able to recover your legal fees as well? Please PM me with any details not appropriate for posting.

Thanks!
 

Lette75

Member
Registered Member
How did things turn out? My situation is a little less complicated, but in the end I feel like I should have been left on AD orders until my situation was cleared. Long story short:
I'm and ART. I was on AGR orders from Sep 2006-2010. While I was on orders I was diagnosed with migraines, high blood pressure and anxiety. I always included these condition in my PHA and turned in all of my medical documents to ASTS. My AGR tour was at my home station, so it was easy to provide them with my medical documentation. A large part of my anxiety was due to hostilities in the workplace. I filed an IG complaint in 2009 because of it. I had a physical about a month before my orders were ended and the doc recapped my medical conditions. My orders ended in Sep 2010 and I returned to being an ART. In Nov 2012, ASTS decided an LOD needed to be initiated because of my anxiety. I wasn't aware of the LOD until May 2011, when I recieved a letter to go to Grand Forks for a mental health evaluation. Jun 2011, I went to Grand Forks and turned my documentation to ASTS. In Dec 2011, I was notified that was being placed on a no points, no pay status due to my migraines and blood pressure, which means that I can't participate in drill or my annual tour. Here it is Apr 2012 and my LOD had not been resolved and I still can't participate. I'm an ART, so I work M-F in civilian status. I think if my medical issues were of concern then they should have 1. intiated the LOD sooner (since it was 2008-2009 when the conditions were diagnosed) and 2. they should have kept me on orders until the LOD and/or my medical issues were resolved. When I got off AGR orders, I applied for disability with the VA. I was give a 60% rating. It only took them 4 months to resolve my claim. Why is the AF taking so long. I'm very frustrated and I have no idea where to start. Our legal office only works on drill weekends, and I don't think anyone is competent enough to even help me at this point.
 
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