Unbelievable

A

ANSU07

PEB Forum Regular Member
PEB Forum Veteran
Registered Member
History:
05/2007 Commissioned Active Duty Navy
05/2007-09/2015 Active Duty Navy (8+years)
09/2015-present drilling reservist

I have two conditions that are well documented in my medical record as well as my physical that I had when leaving active duty. These are major depressive disorder with GAD and thoracic nerve palsy. I transitioned from active duty to the reserves in an attempt to salvage my career while decreasing the level of stress. Unfortunately, the MDD worsened, leading to hospitalization and a VA rating of 100%. I am unable to work and have lost my civilian job.

This is the unbelievable part...despite the illnesses originating from active duty, being deemed service connected by the VA, and leading to 100% disability, I am not eligible for medical retirement from the reserves because I voluntarily transitioned from active duty less than a year ago. Apparently the "disability benefits" clock resets if you are active duty and transition to the reserves. Unbelievable.
 
Nope, you need a Line of Duty (LOD) determination that points to your illness/disease/injury occurring on active duty. You may be able to get a reserve doctor to write and route it. You will then be able to possibly retire.
 
Demand an LOD immediately. If found "I'm the line of duty" and the condition is unfitting, you should go to MEB. According the Army regulations, any condition incurred during one term of service that recurs in a later term of service should be in the line of duty barring willful misconduct or negligence. Look for that language in the Navy LOD regs. In the army it's under a section about what happens when the incident occurs while not in a duty status. Talk to Mike Parker on here about the fact that you have a VA rating:

http://www.pebforum.com/site/thread...d-conditions-declared-non-duty-related.23904/
 
Unfortunately the Navy regulation (SECNAVINST 1850.4E) is very clear on this and I'm being told I have no recourse. There may be some differences between the services here. See below.

2020-a I clearly fall into this category and 2020-b I was not on a call to active duty of more than 30 days, I was on standard active duty for 8+ years.

SECNAVINST 1850.4E DoN Disability Evaluation Manual

"2020 Disability Benefits

a. Active Duty. Disability retirement pay and severance pay, authorized by 10 U.S.C., Chapter 61, provided for members, who, if otherwise qualified, become Unfit to continue naval service because of physical disability acquired or aggravated while entitled to receive basic pay. Once released from active duty and no longer entitled to receive base pay, members or former members are not authorized benefits under 10 U.S.C., Chapter 61, even though their disabilities are service connected. Rather, such members or former members must file separate disability claims with the Department of Veterans Affairs (VA).

b. Reserve Component Members. A Reserve component member shall be adjudicated under the statutory provisions applicable to his or her duty status at the time of onset or aggravation of the condition for which the member is determined Unfit. This means a Ready Reserve member not on extended active duty at the time of his or her referral into the DES, but who is determined Unfit for a disability incurred or aggravated while the member was on a call to active duty of more than 30 days, comes under the provisions of 10 U.S.C. 1201 - 10 U.S.C. 1203 and not 10 U.S.C. 1204 - 1206 (reference (a)). In such a situation, "in line of duty while entitled to basic pay" rather than "proximate result" is the applicable statutory requirement for entitlement to disability compensation. "


Like I said, unbelievable especially since there's no break in service between my active duty and reserve duty. So after 8 years of active duty, I'm not eligible for disability retirement, but a pure reservist, who did 1 stint of active duty >30 days is eligible for disability retirement if they incurred the injury during the 30 days.
 
You are not correct and need to request an LOD through your chain of command. I don't have time tonight to address the citation you provided, but this topic has been discussed ad nauseum here on pebforum. There are tons of us on here who got hurt on active duty and are in the reserves and pressing this exact issue. Reach out to this guy. He got hurt on active duty, but successfully medically retired from the reserves after much much fighting. There is ZERO chance the Navy reserve can legally avoid DOD regulations:

http://www.pebforum.com/site/members/floridainjuredincombat.32942/
 
Top, thanks for the info. Will continue to research and try to get the decision reversed.
 
There is a subtle distinction that is causing the confusion here.

If you are originally a Guardsman or Reservist, ordered to active duty, incur the injury, and then transition off of active duty, then yes, you are entitled to the benefits as long as you get a LOD done, whether on active duty or after you transition.

If you are originally active duty, then separated from active duty and transitioned to the reserves, per 10 USC and the SECNAVINST I cited, you are no longer eligible to seek DoD disability benefits from the injuries incurred while on active duty. However, if I was ordered to active duty for > 30 days and claimed that the injury was aggravated, had a LOD at the completion of the orders, then I would be eligible for disability retirement.

I've had this argument with my NOSC and the medical unit for 2 months now and have gotten no where. If anyone else has a similar experience, I would appreciate the information.
 
There is no confusion on my part, and no distinction.

d. Reserve Component (RC) Service members who are not on a call to active duty of more than 30 days and who are pending separation for non-duty related medical conditions may enter the DES for a determination of fitness and whether the condition is duty related.

http://www.dtic.mil/whs/directives/corres/pdf/133218p.pdf

Unfortunately I don't have the time tonight to hand you all the citations you need on a silver platter. However, it is likely that you are not fit for duty and should therefore not be drilling. So what is their proposal for you? Allow you to drill until you ETS with no IDES processing?

You need to request an LOD an probably INCAP pay (since you lost your civilian job) now. If they try to send you to a non duty medical board then you need to raise the issue of service connection.

When you entered the reserves you were presumed fit. If you are now not fit, then the only way to determine why that is is through a line of duty investigation. And since you have a 100% VA rating, and presumably active duty records to back it up, there isn't much to investigate. I'm sure if I got into the Navy LOD regs, they would be substantively the same as the Army regs.
 
e. Prior Service Impairment. Any medical condition incurred or aggravated during one period of active service or authorized training in any of the Military Services that recurs, is aggravated, or otherwise causes the member to be unfit, should be considered incurred in the LOD, provided the origin of such impairment or its current state is not due to the Service member’s misconduct or willful negligence, or progressed to unfitness as the result of intervening events when the Service member was not in a duty status.

http://www.dtic.mil/whs/directives/corres/pdf/133218p.pdf
 
I'll see what the command response to this is. That's pretty clear. For whatever reason they are operating solely off of the SECNAVINST.
 
You may need to lawyer up on this to force the command to do the right thing.
 
Unfortunately they aren't buying it, citing SECNAVINST 1850.4E:

2039 Incurred While Entitled to Receive Basic Pay:


b. "While entitled to receive basic pay" encompasses all types of duty, which
entitled the member concerned to receive active duty basic pay. It also includes any duty
without pay, which may be counted the same as duty with pay, such as reserve personnel
drilling in non-pay billets. For purposes of administering disability benefit under 10 U.S.C.,
Chapter 61, midshipmen are not entitled to receipt of basic pay. In addition, members in an
appellate or excess leave status are not entitled to receive basic pay. This definition shall not
be construed to entitle any member not on active duty, who, at the time of separation from active duty was considered Fit to continue naval service, to benefits under 10 U.S.C.,
Chapter 61, because of an increase in impairment occurring while the member was not
entitled to basic pay."
 
Get a lawyer.
 
SECNAVINST 1770.3D 17
1. Line of Duty Investigation (LODI). It shall be presumed that an injury, illness or disease was incurred in the Line of Duty and not due to gross negligence, intentional misconduct, or willful neglect.

Meaning that once you claim it, they need to come up with evidence that it is not duty related.

I suggest you request an LOD immediately and if they don't do it, file an IG complaint as well as go up your chain of command. Of course they don't buy it, because the people in power somehow get there without any regard to actually following the rules of the institution. You need to start documenting immediately that you have been attempting to assert your rights. I gave you the DODI perspective on your situation. I unfortunately do not have the time to learn Navy Reserve regs. and culture, but I think it highly unlikely that the Navy Reserve is somehow exempt from the obvious:

1) You have a prior service impairment.
2) You claim to have lost your job because of it. You need to request an LOD and INCAP pay immediately. They need to provide INCAP pay and needed medical care immediately (you may continue to go to the VA if you wish since you have that benefit).
3) Prior service impairments are in the line of duty with the caveats stated in the DODI.
4) Medical Personnel need to determine whether you are fit.
5) If you are unfit due to a condition determined to be in the line of duty, you need to be processed for medical retirement.

You can also file a congressional.
 
Top, I fully agree. It's not the LOD determination that's the problem. They are saying I'm not eligible for a MEB/PEB and disability benefits because at the time of separation, I was deemed fit to continue service as a reservist (though I really wasn't at the time, I was trying to salvage my career). Appreciate the continued support.
 
They can say that all they want. Once you have an LOD stating it is in the line of duty then it is game over for them. I outlined the process above. It is up to you to demand they follow it.
 
Anyone have recommendations on lawyers? Or is there a thread buried in the forum somewhere with recommendations?
 
You can hire Jason who is the creator of this website. However, start with the easy stuff: request an LOD and go up your chain of command and file and IG complaint if they don't comply.
 
I am going through the same situation, except in the Air Force Reserve. This is sad and I feel like it's me against the Air Force Reserve. Makes no sense.
 
ANSU07 said:
Anyone have recommendations on lawyers? Or is there a thread buried in the forum somewhere with recommendations?
Click to expand...
Morning Sir,
I am currently going through the same situation. Did 11 years active duty Navy. Got out and went straight into the reserves in 2012. Currently rated 100% through the VA. My ipeb results came back NPQ but no percentages because it states "It is not proximate that my conditions are military related." I just got my paperwork from the individual that sent my peb package up and she left out a few pieces of crucial information. I am currently trying to initiate a LOD from something that happened on drill in April (just inside the 180 window). She also left out my active duty records showing how many times I was seen for my mental health condition. If you don't mind me asking. How did your situation turn out? Any advice would be greatly appreciated.
 
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