Presumption of fittness rule: Here we go again

D

dkokoszka

PEB Forum Regular Member
PEB Forum Veteran
So I call the JAG this morning at West Point about my case. ( I have not been issued the Narrative Summary to date, its coming soon), The gentleman on the phone tells me that becuase I am over 23 Years of Active duty the PEB and only the PEB would porbably find me fit under the "persumtion of fittness rule"

So I say I will retire then, he says I can't, That only the PEB can grant this request.

Thoughts/Comments please.
 
Below are the rules per DoDI 1332.38. When I went through, I had applied for but had not been approved for retirement. The PEB called me and asked if my retirement had been approved. When I said no, the adjudicated my case and found me fit without any real analysis or rationale. Ironically, my first retirement request was denied. My retirement was approved upon my second request the following year.

Mike

DoDI 1332.38

E3.P3.5. Presumption of Fitness

E3.P3.5.1. Application. Except for Service members previously determined unfit and continued in a permanent limited duty status, Service members who are pending retirement at the time they are referred for physical disability evaluation enter the DES under a rebuttable presumption that they are physically fit. The DES compensates disabilities when they cause or contribute to career termination. Continued performance of duty until a Service member is approved for length of service retirement creates a rebuttable presumption that a Service member’s medical conditions have not caused career termination.

E3.P3.5.2. Presumptive Period. Service members shall be considered to be pending retirement when the dictation of the member’s MEB occurs after any of the circumstances designated in paragraphs E3.P3.5.2.1. through E3.P3.5.2.4., below.

E3.P3.5.2.1. When a member’s request for voluntary retirement has been approved. Revocation of voluntary retirement orders for purposes of referral into the DES does not negate application of the presumption.

E3.P3.5.2.2. An officer has been approved for Selective Early Retirement.

E3.P3.5.2.3. An officer is within 12 months of mandatory retirement due to age or length
of service.

E3.P3.5.2.4. An enlisted member is within 12 months of his or her retention control point (RCP) or expiration of active obligated service (EAOS) but will be eligible for retirement at his or her RCP/EAOS.

E3.P3.5.3. Overcoming the Presumption. The presumption of fitness rule shall be overcome when:

E3.P3.5.3.1. Within the presumptive period an acute, grave illness or injury occurs that would prevent the member from performing further duty if he or she were not retiring; or

E3.P3.5.3.2. Within the presumptive period a serious deterioration of a previously diagnosed condition, to include a chronic condition, occurs and the deterioration would preclude further duty if the member were not retiring; or

E3.P3.5.3.3. The condition for which the member is referred is a chronic condition and a preponderance of evidence establishes that the member was not performing duties befitting either his or her experience in the office, grade, rank, or rating before entering the presumptive period. When there has been no serious deterioration within the presumptive period, the ability to perform duty in the future shall not be a consideration.
 
WOW, maybe its becuase you put in for retirement (not appoved) that they figured your were fit?

Its a double edge sword, dam if you do dam if you don't.

So here I am sitting and waiting around. Can't get out and might be persumed fit at a later date.

For me this MEB process is terrible. No (Real) help from the people that should be helping you (Not talking about this site).

Let's see,

1. AGR Branch HRO: No help at all, they are clueless.
2. PEBLO: Again no real help, they gave me a bunch of telephone numbers to call, When I call no one answers.
3. JAG: So So

FUSTRATED
 
Presumption of fitness rule should not impact you because you do not have approved retirement. That said, and perhaps similar to what happened in maparker's case, I do think there is sometimes an "informal" PFIT rule applied. They figure that even if the technical rule does not apply, then they will just find you fit anyway. I can't vouch for this as a policy, it is more of a sense I have from looking at many cases.

One other point. I think the the PFIT rule is essentially meaningless as a standard. From the above quoted DoDI, "Service members who are pending retirement at the time they are referred for physical disability evaluation enter the DES under a rebuttable presumption that they are physically fit." However, the standard rule they use (which I think is erroneous, but that is another issue), is:

Evidentiary Standards for Determining Unfitness Because of Physical Disability
E3.P3.6.1. Factual Finding. A factual finding that a Service member is unfit because of
physical disability depends on the evidence that is available to support that finding...
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 a
Service member's fitness, an attempt will be made to resolve doubt on the basis of further
objective investigation, observation, and evidence. Benefit of unresolved doubt shall be resolved
in favor of the fitness of the Service member under the rebuttable presumption that the member
desires to be found fit for duty.
E3.P3.6.2. Preponderance of Evidence. Findings about fitness or unfitness for Military
Service shall be made on the basis of preponderance of the evidence.

My read of this is that it is essentially the same standard...they presume all members to be fit. So, it is an erroneous and nonsensical standard they are using.
 
Jason, not sure if you got around to my question regarding, Can I retire now, drop papers tomorrow, I have not received my Narrative summary yet. I am AGR (ARMY) 23 years active duty.

The reason I asked is my 1st PEBLO (Just recently left) said it would be up to my Command to approve or dis-approve the retirement request. (This was 3 months ago)

My new PEBLO said I can't (She told me that today, JAG also said the same thing)

Thank you
 
It is possible to get a waiver to the requirement to complete disability processing. However, as a baseline, I think you normally could not retire at this point:

AR 635-40:

"3–7. Retaining Soldiers on active duty after scheduled nondisability retirement or discharge date
A Soldier whose normal scheduled date of nondisability retirement or separation occurs during the course of hospitalization
or disability evaluation may, with his or her consent, be retained in the service until he or she has attained
maximum hospital benefits and completion of disability evaluation if otherwise eligible for referral into the disability
system.
a. Officers and warrant officers on extended active duty may be retained on active duty according to the provision
of AR 600–8–24, chapter 1.
b. Enlisted Soldiers on extended active duty may be retained on active duty according to the provisions of AR
635–200, chapter 1.
c. Soldiers in the Reserve Components (other than Active Guard/Reserve) (AGR)) may be retained according to the
provisions of AR 135–381.
d. Reserve Component Soldiers serving on AGR status will be retained on active duty as prescribed in AR 635–200."

Read together, I think this provides authority for normal processing out if you have a pre-scheduled non-disability retirement. As I understand your current situation, you have no such scheduled retirement. So, I think they would look at you as requiring a PEB and a retirement request at this point would likely be denied. Again, there are waiver authorities for the provisions of AR 635-40, and I have seen many things happen that are not supposed to happen based on a strict reading of the regulations. I think I would look at it as unlikely to work, but the first step in trying to accomplish this would be to request retirement. You would likely need to work on a waiver at the same time, though, through the waiver authority for exception to policy.

The waiver guidance is here:

"Proponent and exception authority.
The Deputy Chief of Staff, G-1 is the proponent of the regulation. The proponent
has the authority to approve exceptions or waivers to this regulation that are
consistent with controlling law and regulations. The proponent may delegate this
approval authority, in writing, to a division chief within the proponent agency or
its direct reporting unit or field operating agency, in the grade of colonel or the
civilian equivalent. Activities may request a waiver to this regulation by providing
justification that includes a full analysis of the expected benefits and must include
formal review by the activity’s senior legal officer. All waiver requests will be
endorsed by the commander or senior leader of the requesting activity and forwarded
through their higher headquarters to the policy proponent. Refer to AR
25–30 for specific guidance."

The only other thing that comes to mind is that if you really want to retire, if you talk to your MEB doctor and explain the situation, he may agree to hold off formal initiation of you MEB (perhaps by holding off of the convening of the MEB) until you can submit the retirement request. I still think your unit would have to not have a flag in place and approve your DA 4187.
 
Thanks Jason! I will provide this very good information to my DAV rep.

My board is schedule next week on the 29th of Feb, 2012 at 0730 in the morning. I have a DAV representive help me try to appeal the Fit by Presumption case. He has experience with dealing with the Meb and knows the regulation on the Fit by Presumption. He also knows all the members that will be on the board. By the way, I had asked for an all Enlisted planel then after talking with my DAV representive, I had changed it back to the regular board members because my DAV rep knows the board members well.

Thank you Jason and to all my brothers and sisters that's looking over me.

Wish me luck!

SGT Marshall
 
You must log in or register to reply here.
Top