Anyone now what AFI's I can use to stop my unit from just kicking me to the curb with nothing. I have 10 yrs in the AFR only 7 are retirement yrs. I came on orders in 07 and in 09 I got sick and then injured 2 of my LOD came back EPTS LOD NA there is nothing in my medical record and nothing documented when I came in to the service. I am being told the unit is going to do a WWD on me and I have been placed on no pay no points. I was on orders when they removed me from them and have stated that the LOD's that I have do not qaulify me for a meb even though I have had 2 surgerys and am still being treated for the injury and am not deployable and have been on a profile for this for over a year. I have to be able to show what regs and laws were broken/violated in order to fix this can someone send me info please.
Kicking out hurt Air Force reservist
- Thread starter vitoria
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Jason Perry
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I tend to think you need to fight the LOD determination first. The AFI is 36-2910.
Without a change in the LOD, your options are limited. You might be able to sue initially in Court of Federal Claims and then either challenge directly the LOD or else accept a remand to the AF Board for Correction of Military Records. All of this is fairly complicated, so you may want to seek legal advice.
Without a change in the LOD, your options are limited. You might be able to sue initially in Court of Federal Claims and then either challenge directly the LOD or else accept a remand to the AF Board for Correction of Military Records. All of this is fairly complicated, so you may want to seek legal advice.
I am trying to fight the LOD but do to the fact that the unit made a mistake on the LOD they put I was only on orders for one day and when I askk them to fix it they did and are now saying that them fixxing there mistake was my second investagation and I can not have another one even though the head commander said yes to the reinvestagation. Also the injury I am recieving treatment for has a LOD of in the line of duty so I am confussed how that one does not count. And I do not recieve treatment for it. what can I do
Below is the standard for deeming a condition EPTS. Below that is a provision that even if the condition is EPTS, you can demand a PEB to make a fitness determination. The PEB may or may not validate the EPTS determination.
Mike
14 OCT 2008 DTM:
E3.P4.5.2. Presumption for Members on Active Duty for More than 30 days. The
presumptions listed in E3.P4.5.2.1., through E3.P4.5.2.3., below apply to members on orders to
active duty of more than 30 days, for purposes of determining whether an impairment was
incurred or aggravated while a member was entitled to basic pay.
E3.P4.5.2.2. After Entry
E3.P4.5.2.2.1. Presumption of Sound Condition for members ordered on active
duty for more than thirty days. This presumption applies in all cases in which a member,
on active duty for more than 30 days is found to have a disability and the disability was not
noted at the time of the member’s entrance on active duty. This presumption is overcome
if clear and unmistakable evidence demonstrates that the disability existed before the
Service member’s entrance on active duty and was not aggravated by military service.
Absent such clear and unmistakable evidence, the PEB will conclude that the disability was
incurred or aggravated during military service.
E3.P4.5.2.2.2. Hereditary and/or Genetic Diseases. Any hereditary or genetic
disease shall be evaluated to determine whether clear and unmistakable evidence
demonstrates that the disability existed before the Service member’s entrance on active
duty and was not aggravated by military service. However, even if the conclusion is that
the disability was incurred prior to entry on active duty, any aggravation of that disease,
incurred while the member is entitled to basic pay, beyond that determined to be due to
natural progression shall be determined to be service aggravated. To overcome the
presumption of sound condition, factual evidence based upon well-established medical
principles as distinguished from personal medical opinion alone must be presented to rebut
the presumption. The quality of evidence is usually more important than quantity. All
relevant evidence must be weighed in relation to all known facts and circumstances relating
to the condition. Findings will be made on the basis of objective evidence in the record as
distinguished from personal opinion, speculation, or conjecture. When the evidence is not
clear concerning whether the condition existed prior to service or if the evidence is
equivocal, the presumption will not be deemed to have been rebutted and the member's
condition will be found to have been incurred in or aggravated by military service.
DoDI 1332.38
4. POLICY
It is DoD policy under reference (a) that:
4.1. The DoD Disability Evaluation System (DES) shall be established to conduct physical
disability evaluation in a consistent and timely manner.
4.2. Members of the Reserve components who are not on a call to active duty of more than
30 days and who are medically disqualified for impairments unrelated to the member’s military status and performance of duty shall be referred into the DES solely for a fitness determination upon the request of the member or when directed by the Secretary concerned.
4.3. The applicable standards for all determinations related to physical disability evaluation
shall be consistently and equitably applied, in accordance
Mike
14 OCT 2008 DTM:
E3.P4.5.2. Presumption for Members on Active Duty for More than 30 days. The
presumptions listed in E3.P4.5.2.1., through E3.P4.5.2.3., below apply to members on orders to
active duty of more than 30 days, for purposes of determining whether an impairment was
incurred or aggravated while a member was entitled to basic pay.
E3.P4.5.2.2. After Entry
E3.P4.5.2.2.1. Presumption of Sound Condition for members ordered on active
duty for more than thirty days. This presumption applies in all cases in which a member,
on active duty for more than 30 days is found to have a disability and the disability was not
noted at the time of the member’s entrance on active duty. This presumption is overcome
if clear and unmistakable evidence demonstrates that the disability existed before the
Service member’s entrance on active duty and was not aggravated by military service.
Absent such clear and unmistakable evidence, the PEB will conclude that the disability was
incurred or aggravated during military service.
E3.P4.5.2.2.2. Hereditary and/or Genetic Diseases. Any hereditary or genetic
disease shall be evaluated to determine whether clear and unmistakable evidence
demonstrates that the disability existed before the Service member’s entrance on active
duty and was not aggravated by military service. However, even if the conclusion is that
the disability was incurred prior to entry on active duty, any aggravation of that disease,
incurred while the member is entitled to basic pay, beyond that determined to be due to
natural progression shall be determined to be service aggravated. To overcome the
presumption of sound condition, factual evidence based upon well-established medical
principles as distinguished from personal medical opinion alone must be presented to rebut
the presumption. The quality of evidence is usually more important than quantity. All
relevant evidence must be weighed in relation to all known facts and circumstances relating
to the condition. Findings will be made on the basis of objective evidence in the record as
distinguished from personal opinion, speculation, or conjecture. When the evidence is not
clear concerning whether the condition existed prior to service or if the evidence is
equivocal, the presumption will not be deemed to have been rebutted and the member's
condition will be found to have been incurred in or aggravated by military service.
DoDI 1332.38
4. POLICY
It is DoD policy under reference (a) that:
4.1. The DoD Disability Evaluation System (DES) shall be established to conduct physical
disability evaluation in a consistent and timely manner.
4.2. Members of the Reserve components who are not on a call to active duty of more than
30 days and who are medically disqualified for impairments unrelated to the member’s military status and performance of duty shall be referred into the DES solely for a fitness determination upon the request of the member or when directed by the Secretary concerned.
4.3. The applicable standards for all determinations related to physical disability evaluation
shall be consistently and equitably applied, in accordance