Just found unsuitable... now what??!!

Habgoodie

PEB Forum Regular Member
My name is Marie and I am about to have 5 years in the Navy. I was in the process of doing my sea duty screening when it came back that I was unsuitable because of my migraines and dysfunctional uterine bleeding. I am fit for full duty so I don't understand what happened. My detailer said that if I got rejected by a carrier everyone else will reject me too, so I will probably be discharged.

I am not eligible for involuntary sep because I have not been in 6 years yet but my family is not ready for me to be discharged. I had not planned on this at all! How do I know if I will be admin or med discharge and is there anything I can do to try and get a medical discharge? What about a medical retirement? Am I eligible? Also, I have not heard anything about any kind of medical board or any kind of board? Is that up to me to request one?

My migraines are 2-3 times a week and debilitating. I can't do anything when I get them, I am seeing a neurologist that put me on elavil (considered a tranqualizer, and anti depressant) maxolt when I get a migraine and unisom to sleep.

What do I do? :confused:
 

gunmate1

PEB Forum Regular Member
PEB Forum Veteran
Habgoodie,
I have almost 15 years in the Navy so i hope i can help you out with this a little. Have you been to medical for your migraines and the dysfunctional uterine bleeding? Judging by you being fit for full duty, i'm going to guess that medical doesn't think of this as an issue. What is your Rate? Also yes you are not eligible for invol sep. You can't get a medical discharge or retirement if you have not been sent to the MEB, then up to the PEB. Medical has to request a board for you, you can bring it up but you can't innitiate the process, MEDICAL has to.
Right now talk with medical, talk with your detailor. Is there anyway to get another Shore duty billet or maybe a squadron? Something shore based near a facility so that you can get treatment. If there is nothing the Navy can do for you, they will seperate you, but you need to go to TAP as soon as possible and get your paperwork started for the VA, you may be rated at a good amount, but you never know until you get in touch with them through TAP, If you need to pull the VA guy aside and speak with them seperatly, and ask as many questions as you possibly can. If you need anymore help, this is the best place to turn, if you need Navy help please just send me a personnel message through here.
 

maparker

Super Moderator
Staff Member
PEB Forum Veteran
Registered Member
If your migraines fail retention standards, you are required to be evaluated in the Disability Evaluation System (DES) for a MEB and possible PEB. It sounds like your migraines fail the retention standards for migraines as depicted in DoDI 1332.38, posted below. Request a MEB. If they won’t send you to a MEB, let me know soonest.

A new law went into effect on 7 January (Section 534 of the 2011 NDAA). It prevents the Navy from administratively discharging members due to the affects of a condition deemed fitting by a PEB. The law is posted below.

Mike


DoDI 1332.38
E4. ENCLOSURE 4

GUIDELINES REGARDING MEDICAL CONDITIONS AND PHYSICAL DEFECTS THAT ARE CAUSE FOR REFERRAL INTO THE DISABILITY
EVALUATION SYSTEM

E4.12.7. Headaches. Headaches, Migraine, Tension, Vascular, Cluster Types. When
manifested by documented frequent incapacitating attacks.

SEC. 534. DISPOSITION OF MEMBERS FOUND TO BE FIT FOR DUTY WHO ARE NOT SUITABLE FOR DEPLOYMENT OR WORLDWIDE ASSIGNMENT FOR MEDICAL REASONS.

(a) DISPOSITION.—

(1) IN GENERAL.—Chapter 61 of title 10, United States Code, is amended by inserting after section 1214 the following new section:

‘‘§ 1214a. Members determined fit for duty in Physical Evaluation Board evaluation: prohibition on involuntary administrative separation due to unsuitability based on
medical conditions considered in evaluation

‘‘(a) DISPOSITION.—Except as provided in subsection (c), the Secretary of the military department concerned may not authorize the involuntary administrative separation of a member described in subsection (b) based on a determination that the member is unsuitable for deployment or worldwide assignment based on the same medical condition of the member considered by a Physical Evaluation Board during the evaluation of the member.

‘‘(b) COVERED MEMBERS.—A member covered by subsection (a) is any member of the armed forces who has been determined by a Physical Evaluation Board pursuant to a physical evaluation by the board to be fit for duty.

‘‘(c) REEVALUATION.—(1) The Secretary of the military department concerned may direct the Physical Evaluation Board to reevaluate any member described in subsection (b) if the Secretary has reason to believe that a medical condition of the member considered by the Physical Evaluation Board during the evaluation of the member described in that subsection renders the member unsuitable for continued military service based on the medical condition.

‘‘(2) A member determined pursuant to reevaluation under paragraph (1) to be unfit to perform the duties of the member’s office, grade, rank, or rating may be retired or separated for physical disability under this chapter.

‘‘(3) The Secretary of Defense shall be the final approval authority for any case determined by the Secretary of a military department to warrant administrative separation based on a determination that the member is unsuitable for continued service due to the same medical condition of the member considered by a Physical Evaluation Board that found the member fit for duty.’’.

(2) CLERICAL AMENDMENT.—The table of sections at the beginning of chapter 61 of such title is amended by inserting after the item relating to section 1214 the following new item:

‘‘1214a. Members determined fit for duty in Physical Evaluation Board evaluation: prohibition on involuntary administrative separation due
to unsuitability based on medical conditions considered in evaluation.’’.

(b) EFFECTIVE DATE.—The amendments made by 2 subsection (a) shall take effect on the date of the enactment of this Act, and shall apply with respect to members
evaluated for fitness for duty by Physical Evaluation Boards on or after that date.
 

gunmate1

PEB Forum Regular Member
PEB Forum Veteran
See Marie, just like i told you one of these guys would be able to help you out with more of the Legal stuff. Thanks Mike
 

Jason Perry

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I have a concern about the Law of Unintended Consequences. That is, one thing that has worried me about the new law is the ways in which the military, if so inclined, can work around this to avoid the spirit, if not the letter, of the law. The situation described by Marie raises one potential issue. What if the military, now knowing they will be limited in applying unsuitablility, declines to refer members to MEBs (and as result, the member never goes to a PEB)? Well, the unintended consequence of this law would be less referrals to MEB/PEB and a streamlined ability to separate members for unsuitablilty.

(All is not lost, though. A failure to refer members to a MEB/PEB would still give rise to a claim for military disability retirement. I just point out that the military has at times shown a tenacity in its non-compliance with the law. Then Congress or the DoD (or in some cases, both) enacts a change to law/regulation...and the military avoids applying the change correctly. Not saying this is what happened here. I just maintain that vigilance is necessary).
 

maparker

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Staff Member
PEB Forum Veteran
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Jason,

I agree with your concern. We need to track such cases and bring them to Congress, DoD and the press if the Navy, once again, short circuits Congressional intent. I am already getting feedback that the Navy DES is on thin ice with Congress.

Mike
 

gunmate1

PEB Forum Regular Member
PEB Forum Veteran
Jason and Mike,
I appreciate all that you guys do, is there any way to find out what is going on with a specific FPEB findings? I talked to my PEBLO, nothing, Talked to PEBLO in Bethesda, No answer to e-mail or phone, Talked to JAG, nothing, Talked to PSD, nothing, Checked VA, nothing (Guess cause i'm not in the pilot program), Wait for the mail every day, nothing. I am entering week 9 of waiting for the results, is their anything i can do?
 

Habgoodie

PEB Forum Regular Member
OMG! That is awesome! Right now I am trying to get my neurologist to put me on LIMDU to buy me some time to get all of this done! I am fit for full duty but unsuitable for seaduty due to my conditions, which doesn't make any sense to begin with. I talked to my neuro about a Med Board and she said that they do not send people to med boards because of migraines.... what do I do now!?!? Thank you so much for this article and your help!
 

maparker

Super Moderator
Staff Member
PEB Forum Veteran
Registered Member
OMG! That is awesome! Right now I am trying to get my neurologist to put me on LIMDU to buy me some time to get all of this done! I am fit for full duty but unsuitable for seaduty due to my conditions, which doesn't make any sense to begin with. I talked to my neuro about a Med Board and she said that they do not send people to med boards because of migraines.... what do I do now!?!? Thank you so much for this article and your help!
Won't send you to a MEB? Show her this:

DoDI 1332.38
E4. ENCLOSURE 4

GUIDELINES REGARDING MEDICAL CONDITIONS AND PHYSICAL DEFECTS THAT ARE CAUSE FOR REFERRAL INTO THE DISABILITY
EVALUATION SYSTEM

E4.12.7. Headaches. Headaches, Migraine, Tension, Vascular, Cluster Types. When
manifested by documented frequent incapacitating attacks.

There are thousands that have gone through the MEB/PEB for migraines. I was one of them albeit in the Army.

Mike
 

Habgoodie

PEB Forum Regular Member
Wow... Thanks Mike. But so what am I supposed to do if she still says no? She said that if I had something "bigger" wrong with me they would add an addendum... but thats about it. She said she spoke with her department head and that is what he said. So if no one will do it for me what can I do? Can I go to a civilian doc? or am I just SOL? Since this is her department heads take on it, I don't think getting a second opinion will get me anywhere.
 

maparker

Super Moderator
Staff Member
PEB Forum Veteran
Registered Member
This is big enough to make you non deployable and subject to an administrative separation. It is certainly big enough for a MEB/PEB as required by DoDI 1332.38. So, do not take no for an answer.

Ask for their decision in writing. Ask to see the patient advocate. See the IG. Inform your chain of command of the MEB/PEB requirement as your chain can initiate a MEB/PEB. Write your Congressman and two Senators for assistance.

Insist on what is right but maintain your military bearing throughout.

Let me know how this progresses. We are concerned that this is may be an evolving way to avoid the new fit but unsuitable law. If they won’t give you a MEB/PEB, I will personally shout about this from the treetops to DoD, Congress and the press and a whole hosts of others. I would suspect there are others in your shoes but who are clueless they are being screwed and we must be concerned about them as well.

Mike
 

LongerHorn

PEB Forum Regular Member
you may be able to stop this before it it goes anywhere, have this law in hand, show your chain the regs, consult with base legal and have them help you draft an IG complaint.

The worse thing that can happen for you is for this to gain momentum before you can impose your will on it.
 
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