RESERVIST AWAITING MEB 1 YR--NOW ORDERS NOT RENEWED!!?

Here's the latest: (Pay attention---YOU may be next!)
Well I'm ready to go to court, Federal Claims Court---pro se (no lawyer) unfortunately---I know it's not recommended, and I wholly agree, but sometimes one has no choice--and I simply have no choice. I've been fine-tuning this complaint and feel it's as ready for filing as this layman can make it. Today though, while working on it I received a phone call from Robins AFB---some colonel investigating my SECAF IG complaint. He tried the same old BS of offering InCap Pay, and mentioned the Participation Waiver (which I never accepted or even requested; according to them it was mandatory.) He asked me what exactly did I want. I quoted him regulations; basically I need to be placed on orders while this medical processing goes forward, LODs, etc. If it gets to the Court I'll be asking for "back pay" as well.-- For those of you not wanting to look up my "case" on this site, here it is basically: reservist on active duty MPA orders since April 2006 until Oct. 2009, then switched to MEDCON orders until March 2010, then MedHold until 27 Feb. 2011---orders not renewed---though still waiting for LODs initiated last year due to MEB requested last year---while still undergoing medical treatments for line of duty medical issues---simply released!---unemployed and unemployable due to these medical concerns---told by command there was no money to continue me on orders!--BS!!---Anyway, once the colonel saw I knew the regulations and was told I was ready to file he said he would get back to me. That's the latest. The optimistic side of me is saying maybe just maybe they will place me back on orders; the pessimistic side is saying JUST MORE BULL.--We'll know soon enough. Unless something delays me again I'll file by Monday. STAY TUNED!
 
Good luck, Lou! I hope that they back down and meet their duty to give you your due benefits!
 
Thanks Jason.
I just received in the mail my LOD findings. This was one of the reasons, based on regulation, I needed to be maintained on orders, since they had been pending since mid-2010 and were still pending when removed off orders February 27, 2011. I'll have to re-adjust my Federal Court Claim, though it's still valid for the back-pay aspect of my lawsuit.
I do have some questions though I'd like comment on from anyone, on one of these LODs. I plan to argue it vigorously. First, the illness in question is Advanced Erosive Osteoarthritis (later diagnosed as), something I brought to the attention of my doctor in January 2010, because of the pain and extreme handicap (only in my opinion) of hands usage. When I brought the hand pain issue (and bony knuckle protrusions) to the doctor this was his initial diagnosis, but was not confirmed until April 2010. In the medical history I told him I had been feeling this pain increase beginning in 2009. [Remember, I had been on active orders since April 2006]--Here is their final finding:
 
Greetings LoufromFWM, based on what you have posted and if u were forwarded for the MEB and have met the requirement of MED Con orders, AFRES needs to keep you on MEDCON orders by law. I have seen a lot of undue processes from the AF Reserve in this subject and also in the ANG. I can tell you for a fact 4 years ago I got an Air Force Audit on MPA Days as the Wing Personnel Superintendent it was my responsiability to ensure the proper MPA days were used accordingly for its purpose. If the Wing is using Wing training or seasoning days other then the AFMOUA approved thru AFREs/SG Medical Continuation days it is consider misappropriation of day use and it is auditable, but you should not be concern with their mistake since you can not be penalized for a system oversight. If they cut your order start the congressional and IG Inquiry . Start logging all the events from the start, Good Luck Chief jr
 
Thanks Jason.
I just received in the mail my LOD findings. This was one of the reasons, based on regulation, I needed to be maintained on orders, since they had been pending since mid-2010 and were still pending when removed off orders February 27, 2011. I'll have to re-adjust my Federal Court Claim, though it's still valid for the back-pay aspect of my lawsuit.
I do have some questions though I'd like comment on from anyone, on one of these LODs. I plan to argue it vigorously. First, the illness in question is Advanced Erosive Osteoarthritis (later diagnosed as), something I brought to the attention of my doctor in January 2010, because of the pain and extreme handicap (only in my opinion) of hands usage. When I brought the hand pain issue (and bony knuckle protrusions) to the doctor this was his initial diagnosis, but was not confirmed until April 2010. In the medical history I told him I had been feeling this pain increase beginning in 2009. [Remember, I had been on active orders since April 2006]--Here is their final finding: EPTS -LOD NOT APPLICABLE. I have read and re-read AFI36-2910, and specifically 3.4.1.2 and its three sub-rules noted below:

3.4.1.2. Aggravation by Military Service. If the determination is the medical condition
existed prior to service, then the military medical officer must determine whether the
condition has been aggravated by military service (i.e., the member had a preexisting​
condition documented in their medical record and was allowed to perform duty).
3.4.1.2.1. If the condition has been aggravated by military service, an AF Form 348
must be initiated.
3.4.1.2.2. If the condition has not been aggravated by military service, the medial​
officer documents this finding in the member’s medical records with an entry of
“EPTS, LOD Not Applicable.” When the member has a conditio​
n that is EPTS and
not aggravated by service, only the initial treatment is covered by the military.
3.4.1.2.3. Eight Year Rule. IAW 10 U.S.C. Section 1207a, a disabling condition will
be found to be in the line of duty, even though the condition existed prior to service
(EPTS), if the member has at least eight years of active service (8 years do not have
to be consecutive), and the member was on active duty orders specifying a period of
more than 30 days at the time the condition became unfitting, as subsequently​

determined by the Physical Evaluation Board.

On the LOD form it clearly states I was "on orders over 30 days"; it also clearly states the investigator finding was "His ability to perform routine duties has been significantly impaired." On section 11 of the form it states the "Findings" as "In Line of Duty."---BUT section 15, "Final Approval" states EPTS-LOD NOT APPLICABLE. In section 19 under "Reasons..." the appointing authority states a finding of ILOD is appropriate." THEN--section 21 I get this: "Substituted Findings:EPTS-LOD NOT APPLICABLE."-----------------Is something sounding fishy here? By the way, can I use the 8-year Rule even though I've yet to get to the PEB? PLEASE ADVISE, ANYONE.
 
Yes, Eight Year Rule applies specifically to to LODs. This was clarified recently in AFI 36-2910.

You should challenge all of this. The problems you have identified with the change of findings should be addressed. It can be laborious, but, when I challenge these adverse LOD determinations, I go to the regulation and look at each step. You will often find that subsequent authorities make changes they are not authorized to make (often this will be the JAG review or the AFRC LOD board). Also, I wonder if they complied with requirements of formal LOD, and whether you were counseled/presented with potential adverse finding and what Investigating Officer stated). They make errors all the time in these investigations.

Regarding the Court of Claims suit, remember to specifically plead both the Tucker Act and 37 USC 204. A common mistake is that people only cite the Tucker Act and fail to invoke a separate money mandating statute.
 
Jason,

Once again, thank you. I thought so on the 8 year rule. Like I said I will challenge this poorly done LOD. I can see what they are trying to do. Here's another bit of interesting info: another LOD I had was for Anxiety/Depression/Adjustment Disorder. According to the LOD it was approved for the Adjustment Disorder ( they mention nothing about anxiety and depression, or for that matter the insomnia which is now chronic), and in the same letter they offer InCap Pay entitlement. We both know how they are treating this when it comes to the DES. Should I take this InCap Pay? I guess I could, but then I won't be able to request Pay from the time I do receive any. But first I'll see what happens with the Court case.---I still have to make them listen to do an LOD on my herniated disc/pinched nerve, something they are ignoring (my Reserve MTF); though this happened while on MedHold orders in 2010. ---Thanks
 
Generally, INCAP is the least attractive option (other than not getting paid at all, of course).

One thing you may be interested in, I have a case that is waiting on a ruling from the judge regarding this exact issue about entitlement for ARC members to stay on orders until final disposition of their DES case. I don't know that at your stage of the game it makes sense to wait (after you file, it will take the government several months to gather your records and respond...I also don't know how they will handle your case in regards to Electronic Case Filing system...if you are somehow exempted, this will probably slow things down). But, the decision in that case may directly impact your case.
 
I'll be honest with you Jason, this is getting really "messy."--I'm already unemployed and don't know how I can find a job in my physical/mental state. Instead of getting better since all of this began I've gotten worse.
I did not know another case was filed with similar issue (aside from Mac's), though my primary contention is that I was on orders over 30 days---way over 30 days. If it's going to be months I'm really up "sh.... creek."--And now of course I'm going to refute this latest LOD, so this is just getting worse and worse as I move forward. In fact, it seems I'm going backwards!--
One thing I'm confused about, if the LOD for the Adjustment Disorder is approved shouldn't they be appointing a PEBLO? Am I not in the DES? Who should be telling me I'm in the DES? My damn MTF has been saying from the beginning I have NEVER been in the DES. I need to talk to my PCM and see what's going on---that is if Tricare allows me to see her---that's another matter I have to resolve.--!!!!!!!!!!???
 
Lou,

I am sorry to hear of all the problems you are facing. You should know that the process in the courts is not fast (though, it is faster in almost every case than by going to the Board for Correction of Military Records). The fastest was actually Mac's case, which was something like 3-4 months. Most take something like 8-12 months (but can take longer depending on how the briefing goes and whether there are any remands).

The LOD does not trigger referral to DES- though, it is a key step to having your conditions considered compensable and, therefore, give you eligibility for DES processing. Not to throw more stress your way, but one concern I would have is with "Adjustment Disorder" diagnosis. The issue with this is that the military (improperly) takes the position that Adjustment Disorder is not compensable. The back story here is that in the DSM-IV, Adjustment Disorder is described as a condition lasting less than 6 months. So, the military basically says "if it only lasts 6 months, it is not a disability- it a transient state and therefore, we don't compensate for it." The problem with this "logic" is that there is a different situation with "Chronic Adjustment Disorder" which is defined as lasting more than 6 months. This is clearly compensable under the VA Schedule- and we know this because it has its own Diagnostic Code, 9440. There is also case law on this subject from the Court of Appeals for Veterans Claims. It is hard to say if this will become an issue for you, but I would be aware of this potential problem.

Hang in there! The fight is not easy, but you can win.
 
I wish I would've found this forum sooner!
Here is my situation-I PCS'd to England for an MPA tour which turned into back to back orders. I was awaiting my extension to take me through my last 120 days and found out, with one weeks notice, that my orders wouldn't be extended due to my pending MEB. No 30 day notice for the house I was renting, no income, and no legal means to remain in England past the day my orders so abruptly ended.*
We've all heard that we're supposed to stay on active duty until cleared but that never seems to be the case, regardless of laws or regulations.*
So in the meantime, I submitted my MEDCON order request and got a job because I lost my military job. Nearly three months later, a CMAS for my MEDCON orders (with back pay) falls from heaven, just like winning the lottery! Everything is great for about two hours then someone, who has nothing to do with my MEB/MEDCON, gets involved and says I'm not entitled because I've been working on base as a CTR and am not debilitated, seems she thinks I'm trying to game the system. She gets in touch with the MEDCON POC and he concurs, encouraging me to seek incapacitation pay instead.*
Albeit, I'm not that bad off in comparison to others but my work and lifestyle has been seriously altered, not to mention the treatment from the AF during my last week on orders. But this isn't right. If this is how I'm being treated, I can only imagine what's being done to some of our younger troops.*
Needless to say, if the MEDCON approval came in a timely manner, none of this would be in question. And if I would've limped home and collected unemployment for three months, these orders would've been cut and I wouldn't be writing this.*
Any suggestions on how to proceed? Should I walk into court with my approved CMAS and ask for my money? Since I have an approved CMAS can someone else outside of my chain cut my orders? I'm an IMA-could I switch to another category and have some stranger cut my orders?
 
DO NOT ACCEPT INCAP PAY!!!!!!

You are entitled to the be on MEDCON orders with back pay until the final determination. Jason and I went through this. We sued the United States of America (aka United States Air Force), in the United States Court of Federal Claims (USCFC) for wrongful discharge and forced the Air Force to issue retroactive orders with back pay, allowances and per Diem. That legal action then kept the Air Force issuing me orders until I was medically retired through the PDES. I received everything I was entitled to under the Law once I got into the PDES and I am now fully retired and in a position to help others.

From the time of my injury to the time I was medically retired it took 1181 days for which I was eventually paid for the entire time approximately $327,000. The total cost to the Air Force was extremely higher due to my medical and their legal bills. Between that period of 1181 days, the "useful idiots" chopped my orders 13 times thinking that they could screw me and I would just go away. Of those 1181 days, I was off orders 345 days because of their malice-aforethought and I got paid for everyone of them...and in the final outcome I doubled my retirement and made it all tax free with an additional three years of active duty.

The Air Force, Air Force Reserve and the Air National Guard are all filled with incompetent "useful idiots" who have no idea what they are doing and willfully and maliciously act out side the the Law thinking that somehow by keeping you off orders or making it difficult for you while on orders, that they are "doing their job" couldn't be further from the truth. To them you are nothing more than a liability that they wish to minimise no matter what Federal Law (U.S.C), The Department of Defense DoDI's and the Air Force AFI's require them to do. The "useful idiots" are betting you will just go away and they can get away with their BS. The fact of the matter is that the "useful idiots" actually cost the Air Force far more money by prolonging the PDES system. If the "useful idiots" just did their jobs (or actually knew what they are), Air Force members would be either returned to duty or separated in a timely manner and the force would be fit at minimal cost. In my particular case I could have been retired within six months instead of three years.

I'm now working with several other people who are in your same situation and we are going to bring the "hammer" down on AFMOA and some of the other "useful idiots" that are unlawfully pulling this BS.

You have a very good case if you want to pursue it. Send me a private message if you want help.

Please read some of my prior postings on this subject...

-duck
 
Hello everyone, I'm going through somewhat the same thing as Lou is going through. I'm an Air Force Reservist with 9 years of active duty service with US Army prior to joining Air force Reserve. I was diagnosed with an illness Sep 2010 while I'm on school/training type orders over 30 days. I was allowed to stay on that same orders while getting treatment as the orders will end Mar 2011. After those orders ended, I was put on Medhold type orders while continuing treatment. I was told that I would be going through MEB and their goal is to give me a medical retirement. I am not very keen on all these process. Then on Sept 2011, I was told that they can no longer keep me on orders due to lack of money. I was told that my LOD is approved and I should send them all the receipts of copays and deductibles that I have to pay since getting off orders while getting treatment. Not to mention I'm no longer getting paid and I have all these added expenses. Currently I'm waiting to see a Doctor that they say will write my narrative summary. I was also told that they can't put me on MEDCON orders because I came off of school/training type orders and not a deployment/contingency type orders.

questions:

Aren't they suppose to keep me on orders while going through this process?

How does the MEB process work?

Thank You in advance for all the help.
 
jembriones said:
Hello everyone, I'm going through somewhat the same thing as Lou is going through. I'm an Air Force Reservist with 9 years of active duty service with US Army prior to joining Air force Reserve. I was diagnosed with an illness Sep 2010 while I'm on school/training type orders over 30 days. I was allowed to stay on that same orders while getting treatment as the orders will end Mar 2011. After those orders ended, I was put on Medhold type orders while continuing treatment. I was told that I would be going through MEB and their goal is to give me a medical retirement. I am not very keen on all these process. Then on Sept 2011, I was told that they can no longer keep me on orders due to lack of money. I was told that my LOD is approved and I should send them all the receipts of copays and deductibles that I have to pay since getting off orders while getting treatment. Not to mention I'm no longer getting paid and I have all these added expenses. Currently I'm waiting to see a Doctor that they say will write my narrative summary. I was also told that they can't put me on MEDCON orders because I came off of school/training type orders and not a deployment/contingency type orders.

questions:

Aren't they suppose to keep me on orders while going through this process?

How does the MEB process work?

Thank You in advance for all the help.
Click to expand...

The fact that you were on school orders DOES NOT MATTER. The only thing it may have bearing on is who pays the bill for the medcon orders. If you were on RPA days, AFRC pays...MPA, active duty pays (or at least that's how the reg is written...).

And yes, if you are going to an MEB, you should be kept on orders....but if you aren't, you won't be the first to be taken off order illegally!

PM Jason with your information....I think he's taking names.....
 
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