MEB VS Officer Elimination Questions

Gmaddux3132

Registered Member
I am an officer
Went through the MEB/PEB in accordance with AR 600-8-24 sec 1-24
I was notified prior to the IDES process (FEB16) through a counseling and official documentation that I may be separated. I elected resignation in lieu of elimination (MARCH16). I entered the IDES process 30MAR16. On 02JUNE16 my CO submitted his Commander's Statement. In his statement he annotated that I am not pending any involuntary separation nor am I facing UCMJ. I have just completed the MEB/PEB and signed my 199. I received 100% VA and 50% DOD. I received orders to separate with medical retirement and when I ask my supervisor to sign my leave form he informed me that I am not allowed to go on leave until HRC has come to a determination on my elimination. I received paper work revoking my orders today. My question is; because I elected a resignation in lieu of elimination will HRC choose that over my medical retirement? Also how may I go about fighting the separation?

NOTE: The CG recommended an honorable discharge. I am pending elimination due to a DUI. My DUI was downgraded to a DWAI (Driving while ability impaired BAH .05-.07). This even took place a year (MAY15). I received an OER in AUG16 with the senior rater (BC) comments stating that he ranked me 1 out of 5 officer he rated and I should continue service and promoted with my peers. Also, according to AR 600-8-24 my MEB and administrative separation with be submitted together to HRC. My medical retirement does not take precedence over my separation because 1) I submitted a resignation in lieu of elimination and 2) I am being separated for civilian conviction.

1) If I retract my resignation and say I do not want to submit it
2) Contest my "civilian conviction"

My medical separation will in theory take precedence over my separation.

I am being separated for a DUI, which I was never convicted of due to the plea deal reducing it to a mere traffic ticket.

Is this a feasible course of action or does this seem like a stretch?

This entire process has been very stressful and because of the commanders statement I was under the impression I was not facing separation. My wife and 16 month old daughter have already moved to our future location and my wife has already accepted a job because I was supposed to start terminal leave on 31OCT16, but my orders were revoked today 28OCT16. Thus causing a financial burden as well as add stress to me and my family.

I have also dealt with harassment and a bunch of other nonsense from my Battalion throughout this process. (denied medical treatment, initially denied MEB by PCM because my chain of command instructed him to, denial of inpatient case for MST. I have documentation to support my above claims to support this as well.

What would a reasonable COA be?
What is the realistic outcome I should expect?

Any information would be greatly appreciated.
 

Gmaddux3132

Registered Member
I recommend you hire an attorney. The return on investment could be very high!
Thank you sir for you reply. Do you know the ramifications of withdrawing my request for resignation in lieu of elimination?

My thoughts are: since I am being separated for:

1. You are required to show cause for retention on active duty under the provisions of
AR 600-8-24 paragraphs 4-2(b)(5) and 4-2(b)(8) due to your misconduct.
2. My actions are based on the following specific reason for elimination: On 9 May
2015, you were arrested for driving under the influence of alcohol, which is an act of
personal misconduct and conduct unbecoming an officer.
3. In conjunction with this action, a Suspension of Favorable Personnel Actions Flag
(DA Form 268) has been initiated according to AR 600-8-2.

AR 600-8-24 paragraphs 4-2(b)(5): Acts of personal misconduct (including but not limited to acts committed while in a drunken or drug intoxicated state).

AR 600-8-24 paragraphs 4-2(b)(8): Conduct unbecoming an officer.

1–24. Referral for physical disability evaluation If a commissioned or warrant officer is being processed for REFRAD, separation, or retirement or has been referred for elimination action, when it is determined that the officer has a medical impairment that does not meet medical retention standards, the officer will be processed as set forth in paragraphs a, through d, below. a. A commissioned or warrant officer under investigation for an offense chargeable under the Uniform Code of Military Justice (UCMJ) that could result in dismissal or punitive discharge may not be referred for or continue disability processing unless— (1) The investigation ends without charges. (2) The commander exercising proper court-martial jurisdiction dismisses the charges. (3) The commander exercising proper court-martial jurisdiction refers the charge for trial to a court-martial that cannot adjudge such a sentence. b. When a commissioned or warrant officer, as applicable, is being processed for one of the actions listed in (1) through (5), below, the officer will be processed in accordance with the provisions of this regulation and through the MEB/PEB system. If the result of the physical disability evaluation is a finding of physical fitness, the Army Physical Disability Agency will approve the findings for the Secretary of the Army and forward the proceedings to CDR, HRC–Alexandria (AHRC–OPD–A), to be processed with the other action. If a physical disability evaluation results in a finding of physical unfitness, both actions will be forwarded by CG, HRC–Alexandria (AHRC–OPD–A), to the Secretary of the Army or his designee for determination of appropriate disposition. (1) Referral to the DAADB except when the DAADB is convened as a result of an imposed reduction in force. (2) Involuntary REFRAD due to civil conviction or moral turpitude. (3) Resignation for the good of the service. (4) Referral for elimination under chapter 4. (5) Request for separation, resignation, or retirement in lieu of elimination. c. When a physical disability evaluation of an officer processed for separation or retirement for the reasons indicated above results in a finding of unfitness and a recommendation that the officer be placed on the Temporary Disability Retirement List (TDRL), the Secretary of the Army or his designee may direct that the officer be placed on the TDRL with the provision that if the officer is later removed in due course from the TDRL for disability separation or retirement, the officer is to be retired, but if the officer is later removed in due course from the TDRL because he is found fit, the officer is to be separated from the service, effective on the date of the officer’s removal from the TDRL with a specified characterization of discharge. As in the case of an officer processed for separation or retirement for the reasons indicated above whose physical disability evaluation results in a finding of unfitness and a recommendation that the officer be separated or permanently retired, the Secretary of the Army or his designee may direct that either the separation or retirement action under this regulation or the disability action take precedence. d. When an officer is processed for separation or retirement for reasons other than those indicated above, physical disability takes precedence if the officer is retained with consent. The procedures in paragraph 1–22 will be followed. e. Officers previously determined physically unfit and continued on AD under AR 635–40 must be referred for disability evaluations at final retirement or separation.

In AR 600-8-24 Paragraph 1-24 (b)(2) and (5) states if I am facing these my administrative action along with medical packet will be forwarded together, but in 600-8-24 Paragraph 1-24 (d) states if I am not facing any of the above my MEB will take precedence if I show cause for retention. I have my recent OER it states to retain SM.

I was NOT Convicted of a DUI, but a DWAI (Traffic ticket)

If I withdraw my resignation in lieu of elimination. I would be inclined to believe that my Medical Retirement would take precedence.

As for my show cause for retention I recent received my OER stating that I should be retained on active duty. Would this be grounds to be "retained with consent"? or would the CG have to be the one retaining me?
 

chaplaincharlie

Staff Member
PEB Forum Lifetime Supporter
PEB Forum Veteran
Registered Member
What I believe is that the stakes are high and there are attorney's that deal with this day in and day out. You might just want to start with a simple consultation with an attorney. It could be the best $200-300 you ever spent. Pick an attorney that deals exclusively with MEB/PEB issues. The average attorney will be clueless.
 

Gmaddux3132

Registered Member
What I believe is that the stakes are high and there are attorney's that deal with this day in and day out. You might just want to start with a simple consultation with an attorney. It could be the best $200-300 you ever spent. Pick an attorney that deals exclusively with MEB/PEB issues. The average attorney will be clueless.
Thank you sir for your response. I have consulted with an attorney who wanted to charge me $770 just to look into it. I will look a little harder this afternoon for an attorney with reasonable ($200-300) fees.

I spoke with TDS (Trial Defense Services) at my instillation... "to wait to see what comes back and then we can see what our options are." I believe in being proactive in order to obtain the results you wish to have, rather than submit to another's conclusion.

Feel free to PM me if you have any Attorneys you might recommend or have worked with.

Thank You
 

chaplaincharlie

Staff Member
PEB Forum Lifetime Supporter
PEB Forum Veteran
Registered Member
Consultation fees are usually hourly. I'm not talking about a fee for someone to take your case. Just an hour of their time so you know where you stand and then can make a decision as to what is best for you.

No good attorney could take the case for 200-300.
 

katz11_11

PEB Forum Veteran
Registered Member
I'm about to guess your going through the same procedure I went through as a dual process MEB vs officer elimination for misconduct. Did you have a board already for elimination or are you a probationary officer? Ask your unit legal what they have submitted to HRC. Both packets should go before the ARBA. You may not need an attorney at this point.

Ask BDE legal.
Talk to your MEB counsel
Talk to TDS
Go to your congressmans office and open an inquiry only to ask where in the process your paperwork is
Call the army special actions branch at HRC for officer eliminations.

Do these before spending money on counsel. PM me as I have the POC for the special actions branch lead civilian.

Be prepared for this to take some time
 

Gmaddux3132

Registered Member
I'm about to guess your going through the same procedure I went through as a dual process MEB vs officer elimination for misconduct. Did you have a board already for elimination or are you a probationary officer? Ask your unit legal what they have submitted to HRC. Both packets should go before the ARBA. You may not need an attorney at this point.

Ask BDE legal.
Talk to your MEB counsel
Talk to TDS
Go to your congressmans office and open an inquiry only to ask where in the process your paperwork is
Call the army special actions branch at HRC for officer eliminations.

Do these before spending money on counsel. PM me as I have the POC for the special actions branch lead civilian.

Be prepared for this to take some time
Currently I have received orders for Medical retirement. I am a probationary officer. I spoke to my Chain of Command and they were unaware of the Commanding Generals recommendation of an Honorable discharge. Thus my Battalion Commander and I are meeting with Brigade Legal to discuss just getting me out the quickest way (Which is MEB). I have not received a time to meet with Brigade legal yet, but the conversation will be... Is my resignation holding this up? If so can I pull my resignation, thus the CG drops the admin sep and I get orders in a week or so and just get out? These will be my questions.
 

Gmaddux3132

Registered Member
As of right now the Commanding General Approved my Resignation in lieu of separation for an Honorable Discharge over Medical Retirement. What should I expect? Other than TRICARE Health Care, what will I be missing out on?
 

katz11_11

PEB Forum Veteran
Registered Member
I'm not so sure it's his authority to make the final call if this is a dual process case. Did you already receive your ratings or is your MEB ongoing?

I'm not the expert but I believe the CGs recommendation along with your PEB findings will be sent to the ARBA then through the deputy assistant SEC Army for review boards to make the final call.

What's your IDES legal counsel telling you
 
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katz11_11

PEB Forum Veteran
Registered Member
Just reading your first post did your notification to separate through an administrative process begin before your P3 profile was signed by a second physician? I hope somewhere this plays in your favor. Get as much information as possible
 

Gmaddux3132

Registered Member
Katz,

I received my ratings in SEPT16 and I already had orders cut back in OCT16. My IDES Legal counsel, although had good intentions, was not much help. I was notified in FEB16 that I was up for elimination. I have an email from my PCM saying my chain of command told him to deny my MEB. Thus my MEB started 30MAR16. A little over a month after being notified for elimination.
 

Gmaddux3132

Registered Member
I was informed Friday that the CG accepted my resignation in lieu of elimination with an HONORABLE discharge. I understand it is up to the Secretary of the Army to determine whether I receive an Honorable discharge or Medical retirement, but I wont find out for 12-16 weeks. I do not understand this process... I am receiving an HONORABLE discharge... what will I be losing? And will HRC see that it is ridiculous to discharge HONORABLY instead of Medical retirement? I would think that since I am getting an Honorable discharge it would grant me my MEB by default...

Questions:
1. What will I be losing?
2. How do I go about filing with the VA if I am discharge?
3. Can I get my Honorable changed to Medically Retired once I get out?
4. Is there a place I can see similar dispositions and there rules?
 

katz11_11

PEB Forum Veteran
Registered Member
It's hard to say and it's obviously case dependent. i can't even speculate on the 5Ws as it's impossible to know. Hope for the best. You want to medically retire and if someone has already recommended an honorable than hopefully that will allow the MEB to be approved
 

Gmaddux3132

Registered Member
NICE MAN! I'm happy for you. Currently my stuff is at HRC and I will be waiting on their decision. I am happy for you man at least someone's chain of command is on the right page
 

Gmaddux3132

Registered Member
Hey guys,

I submitted a resignation and the CG recommended Honorable. When it went up with my 199 to him to review again the CG stuck with Honorable over MEB. To my understanding I can pullback my resignation at any point. Would it be in my best interest to pull my resignation now? My packet is currently at HRC. Would this give me a better change to get my MEB?
 

Gmaddux3132

Registered Member
I have just received medical retirement orders to day! And I am receiving an "HONORABLE" characterization of service. After nearly 2 years of dealing with uncertainty I may finally able to breath.

To everyone who is going through a similar situation MEB VS ADMINISTRATIVE SEPARATION I would strongly advise you to really know the regulations and what your chain of command are allowed to do. As a result my Chain of Command is currently being held accountable for their actions. Also I would recommend documenting everything said and done pertaining to your situation and keep a timeline of each events. Most importantly, make sure you take care of yourself.

I appreciate everyone who has provided me with any input at all. If anyone needs any help or has questions please feel free to PM me. I will gladly invest my time and energy to support you.

Thank You,

GM
 
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