Non-Duty DES Questions

aplcr0331

aplcr0331

PEB Forum Regular Member
Registered Member
My guard unit is puting me through a non-duty DES for sleep apnea and depression. I will have 15 good years next April. I have a mix of active duty and guard time, though none of it was in support of OIF/OEF (I did not deploy overseas).

The medical unit gave me letters to send to my civilian doc's to get narrative summaries on my conditions. I have been taking Prozac for years, but do not go through any counseling or anything like that. I'm not sure they can get me on Depression. The sleep apea is OSA and I have a pretty high AHI number that requires the MEB.

Am I going to get administratively discharged? Is there a way for me to get retirement if I am over 15 years? My medical group and the FSS people say no that is not possible. They say that progam ended in 1999 (retiring between 15-20 years from the reserves).

I'd hate to make it this far and lose out on getting base priviliges (we use it a lot) and healthcare when I turn 60.

Thanks,

Cory
 
See 10 USC 12731b. Yes you can retire for length of service with 15 years if unfit for a non service connected disability. Please educate them.

Mike
 
They showed me some regulation (I'm trying to find it now) that stated the 15-20 early retirement rule ended in 1999. Do service regulation trump Title 10?

And what are the odds of me, a lowly SSgt, telling our admin people which section they can retire me under? (I'd love to do it by the way)

Should I go to our legal office?

Thanks,

C
 
Out of curiosity, are they claiming that OSA and Depression are not meeting retention standards? Do you a LOD and have you been on profile for both conditions?
 
gsfowler,

Yes, they're claiming the OSA is not meeting retention standards. Apparently the regulations recently changed for severe OSA and if found it warrants an immediate MEB. The depression they just caught because I'm chronically on Prozac, so they are throwing that in for good measure I suppose.

C
 
Your unit is confusing TERA (Temporary Early Retirement Authority) with 10 USC 12731b, below. Makes me wonder how many members in similar situations got screwed.

TERA did exist during the period you mentioned and TERA authority was recently reestablished by Congress for the Services to use as needed to restructure the force. It is being used in very limited circumstances at this point.

You should go through a MEB/PEB. If deemed unfit for a condition that incurred or was aggravated on active duty, you should be given a immediate disability retirement or disability separation. If the condition is deemed unfitting but not service connected, you should be offered a 15 year retirement per 10 USC 12731b.

Mike

10 USC § 12731b - Special rule for members with physical disabilities not incurred in line of duty


12731 of this title, determine to treat the member as having met the service requirements of subsection (a)(2) of that section and provide the member with the notification required by subsection (d) of that section if the member has completed at least 15, and less than 20, years of service computed under section 12732 of this title.
(b) Notification under subsection (a) may not be made if—
(1) the disability was the result of the member’s intentional misconduct, willful neglect, or willful failure to comply with standards and qualifications for retention established by the Secretary concerned; or
(2) the disability was incurred during a period of unauthorized absence.

http://www.law.cornell.edu/uscode/text/10/12731b
 
Yes, the 15 year retirement rule for non-duty related disabilities was reinstated. But the 15 years have to be GOOD years (at least 50 retirement points per year). So you have to base your 15 years on your RPAS, not your PEBD.
 
Mike, thanks sir for clearing that up. I'll make sure I bring up both regulations, and you're right I wonder if there are others in my same boat?

Ed, good point, I'm actually at 14 good years right now and will have 15 good years at the beginning of next May. This is gonna be close!

gsfowler, I forgot to mention that these are non-duty disabilities so there is no LOD involved. Of course, now I'm off to getting the OSA service connected from my USMC active duty days as that was when it was first diagnosed.

Thanks so much,

Cory
 
Being on the medication for depression alone would not warrant a MEB, the standard for presumption of fitness regarding the OSA would be that it must fail a trial period of treatment.

Do your best to get the OSA service connected. Has your OSA ever interfered with performance of duty?
 
gsfowler said:
Being on the medication for depression alone would not warrant a MEB, the standard for presumption of fitness regarding the OSA would be that it must fail a trial period of treatment.

Do your best to get the OSA service connected. Has your OSA ever interfered with performance of duty?
Click to expand...

Not really other than if I sit down at a computer for too long I will fall alseep. I fell asleep while driving a couple of time (but not while on duty with the Guard) so nothing that really effects me job wise. I'm not sure how they will take it. I've been dealing with the sleep issues for ten years so I'm somewhat used to being tired all the time.
 
maparker;

I'm meeting with the folks from FSS this drill weekend. They say that they contacted NGB A1 about my situation and were told that I do not qualify for 15 year retirement. I know for sure that they did not mention Title 10, Section 12371b when they asked about my situation. I was sent a policy letter with guidance on Non-Duty DES and it does not mention anything about 15 year retirements. But it does say that if the member declines the Non-Duty DES that they must be processed for discharge, and that if they are retirement eligible then they can apply for retirement in lieu of discharge.

My unit is probably going to fight me on this. I'm not sure where it is coming from. I think they are just not aware of what I am talking about most of the time.

Who should I contact to get help with this? Our JAG office only has an enlisted MSgt in there now, should I contact the active duty legal office?

Thanks!
 
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