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Where Does the BS End???!!!

rickman

PEB Forum Regular Member
PEB Forum Veteran
OK - I am not new to this and have done a fair amount of reading. Long story short:

Left AD in 1999 with 14 years AD time. Strained my back numerous times loading cargo onto planes - no documentation or visits to medical. On AD in 2005, I strained my back in Kuwait. Documented it on PDHA, no evaluation was done and was DEMOB'ed. In 2009, hurt my back and went to the civilian doc. Found multiple issues (L5 and S1 disc bulging causing nerve compression and pain down my right posterior leg). Went to ASTS in early 2010 and they ILOD'ed me from PDHA done in Kuwait in 2005. ILOD shows EPTS - Service Aggravated. Squadron had me slotted for deployment in September 2010. AFRC provided participation waiver (UTA's and homestation duty only). Unit pressured me into "getting better" so I could deploy. Did self-paced PT but could not perform to Fitness Standards. Pain subsided and docs cleared me to go. HOWEVER, AFRC's participation waiver could not be overruled and I was unaware. I deployed to Iraq on schedule. Got to AOR and pain came back, documented it on PDHA and told ASTS when I returned. I suspected it was aggravated by duty in Iraq but ASTS argued LOD from 2005 will suffice since I could not prove condition worsened. Again I was DEMOB'ed. NOW, ASTS is trying to get me to self-elect my case be forwarded to either MEB or PEB (my choice) based on an SG Policy Document designed for ARC members with !!!NON-DUTY RELATED!!! injuries. I refuse to sign referring to the document saying it is for !!!NON-DUTY RELATED!!! injury. ASTS is telling me they will send it to me certified and if I do not return it by 1 November, they will note I will not comply with submission and they will submit anyways. If I sign for MEB, I am put into Code 37 (no pay/no points) and will go home until MEB determines findings. If I elect PEB, the findings will either lead to separation or retirement in lieu of separation.

I SCREAM BS!!!!!

Now my plan of action is that they should not have DEMOB'ed me after the Iraq deployment. The last MRI shows my condition is deteriorating BUT it will be hard to prove it was aggravated. In February (while still on downtime), I submitted a request for an IG investigation to AFRC (should have gone to AF IG as I soon learned). I argued my point and quoted regulation and Title 10 USC and the IG told me "Yes that is what it says but that is not the way it works". AFRC sure has me in their best interest. I am still awaiting documents from the IG through FOIA (yes, you cannot recoup your own documents from an IG investigation unless you request them from the FOIA office). Once I have those documents, I will be ready to plead my case with the AF IG.

Since I am being jerked around, do you think I have a chance on being backdated to the original injury in 2005 for pay/points? That may be stretching it a bit...

My question to anyone who has experience in similar matters - should I even bother with the AF IG or should I go to my Senator? I know I could file suit in the US Court of Federal Claims for illegal separation from service but I don't have the money to fight that way.

Another piece of advice - if you are in Reserve status and have an injury that can be considered a disability, file early with the VA. Going on four months now and the status is still pending with them.

Any feedback is appreciated and good luck to those in the same battle. Don't give up!
 

Jason Perry

Benevolent Leader
Site Founder
Staff Member
PEB Forum Veteran
Registered Member
The backdated pay to 2005 is very complicated. My instinct is that it is not likely to work in your favor, but it really depends on the facts AND (in these types of cases) what the AF says in response to any claims. Here are some points:

In order to prevail on the notion that you should not have been released in 2005, you would have to show that you failed retention standards and should have had a MEB/PEB back then. They will likely take the position that you were presumed to be fit (or were actually fit) by virtue of your later clearance to deploy. If you were able to drill or perform duty later, you will be faced with the claim that that duty demonstrates you were fit for duty (and therefore were eligible to be released from AD in 2005). However, if you do have a claim and should have been retained and processed for MEB/PEB back in 2005, your route for further relief is in the Court of Federal Claims (CoFC). The problem there is any pursuit of administrative relief will take longer than you have to file in CoFC (which may already be too late, now that it is 2011...your six years may or may not have already expired). Please remember that I am not offering legal advice and I don't know all of the facts of your case, so I may not be correct in my instincts. If you need legal help, you should seek an attorney-client relationship and get that help.

That said, I think you currently should go to a MEB/PEB on a duty related basis. And you may have a wrongful discharge claim from your most recent deployment. There are numerous things you wrote that they have said that strike me as wrong (like you having to prove anything- the presumption is service incurrence and service aggravation). My view on Congressionals and IG complaints are that they are great when they work. Often they don't. If they don't, then BCMR and/or Court of Claims is the way to pursue your issues.

Best of luck!
 

89Falcon

PEB Forum Regular Member
PEB Forum Veteran
Rick,
Did you request the participation waiver? I think that AFRC will try to use the Participation waiver, plus the lack of a NEW LOD to deny medcon orders since by getting a participation waiver, you ARE "fit for duty" according to them.

The big problem at A1 is a Arky ANG Lt Col named "Armbristor". He's a mid 50's Hospital administrator who like to play Dr...and authorizes the same conduct from a couple AFR Nurses who work for him. They are frankly ignoring the law, and basically daring people to file and IG complaint or a congressional.....I filed one over 4 weeks ago.

Who is your congressman? What state are you from? I hate to say it, but I can't see it changing unless someone goes after Armbristor under UCMJ...since he is willingly violating the regs.....(I'm thinking of contacting his home duty...they still have UCMJ authority.....)....or if these clowns are outed in a VERY public way (ie, the press......).

The IG will take a year.....yes, a year....minimum.....
 

rickman

PEB Forum Regular Member
PEB Forum Veteran
OK - sorry for the delay. My back flared up again and was in severe pain for days. I made some progress! I convinced the MTF that my issue is line of duty (duh!) and they stated they are FEDEX'ing my chart to Robins AFB for review and they should contact me for an appointment. My new questions are:

1. Does the fact that ASTS sent my chart to Robins sound like I am now in the DES?
2. What should I expect next from the great AFRC bag of tricks?
3. Should I request MEDCON orders now that it APPEARS I am finally in the DES for my LOD injury?
4. Should I go ahead and send the letters to my congressmen for assistance?

89 Falcon - I am in GA and I did not request a participation waiver. They told me they will put me on one when I was still on active status (before demobilization) AND my doctor recommended I be kept on orders. The ART at ASTS told me after that request my existing LOD from 2010 would suffice for medical care for my back and that I was not entitled to remain on orders. And yes - that Lt Col Abristor also denied MEDCON orders at my first at bat because my injury was not considered a disability at the time.
 

Buffalo

PEB Forum Regular Member
The BS will end when some frustrated poor bastard shoots himself or others. Roger Armbristor's job is to save the AFRC money regardless of the Wounded Warrior Program and "Support Our Troops" BS you hear from AFRC. Sorry this is a bad copy. Do not sign a Participation Waiver unless you are on Incapacitation Pay or Injured Not In Line of Duty.
DEPARTMENT OF THE AIR FORCE
AMR FORCE RESERVE COMMAND

MEMORANDUM FOR ALL RESERVE MEDICAL UNITS
FROM: HQAFRC/SG
SUBJECT: Participation Waiver Process and Requirements
1. Effective immediately, HQ AFRC/SGP is the waiver authority for reservists requesting a waiver to API 36-8001, allowing participation at home station while on a "4" profile due to a disqualifying medical condition (attachments 1 and 2), This change applies to both medical evaluation board (MEB) in line of duty and worldwide duty (WWD) not in line of duty cases. The MEB and WWD evaluation process will continue as required for those disqualifying conditions despite issuance of a participation waiver. The new "4T" participation waiver designation will replace the previously used temporary "P-3".
2. Duties at home station that may be performed while under a participation waiver include unit training assemblies (UTA) and annual tours only. Invitational travel orders will be used when military medical appointments are required to evaluate a disqualifying condition. Mandays are not authorized while participating on these waivers. The intent of the waiver is to allow members with disqualifying conditions the ability to acquire minimum points required for a satisfactory year of military service.
3. Participation waivers will expire after 90 days for WWD/MEB cases not yet received or reviewed by AFRC/SGP, Once reviewed , participation can be approved until a final determination (RTD or separation) has been made. Those cases previously disqualified by this office but currently going through the disability evaluation system (DES) may request a waiver using this process.
4. To request a participation waiver, the RMU or military treatment facility (MTF) will draft a narrative summary authored by an appropriately privileged military provider and forward it to [email protected] or fax it to DSN 497-0081, To ensure a timely response, please DO NOT send requests to individual email accounts. No verbal (telephonic) waivers will be approved.
5. Members on mobilization or military personnel appropriation (MPA) orders with no break in service, in support of a Gaining Major Command (GMAJCOM) at the time of the injury/illness was originally incurred or aggravated, and who do not warrant a participation waiver, will be issued MPA mandays by the respective GMAJCOM The member will apply through their wing to the respective MAJCOM using the Consolidated Man-day Authorization System (CMAS). The appropriate ARC personnel account will be utilized when the original condition was incurred in a Reserve status. Entitlement under this policy shall begin when the condition renders the member unable to perform, military duties; not when the injury occurred or when the member was released from active duty. Active duty orders will continue until the member is
returned to duly or processed through the DES. If a participation waiver is issued the member is NOT entitled to medical continuation orders (MP A via CMAS),
6, Members that have been released fromactive duty, with a break in service, and have become unable toperform militaryduties as a result of an injury and/or illness incurred or aggravated in theline of duty (while onorders) will be voluntarily returned to active duty using GMAJCOM funds via CMAS per attachment 3. Return to active dutyis voluntaryand may be declined by the member. If declined, the member may qualify for incapacitation pay in accordance with ARC policy,







JAMES D. COLLIER, Colonel, USAF, MC,CFS
Command Surgeon
Attachments:
1. USAF/SG letter
2. USAF/RE letter
3. SAF/AA letter
 

rickman

PEB Forum Regular Member
PEB Forum Veteran
Hey Buffalo - this is great! Thanks!!! Do you by chance have the attachments or a link through AF Portal for this? I'm sure I will have to educate a lot of people on how to put me back on orders.

Or if you have it in electronic copy, can you PM me and I will give you my e-mail address...
 

89Falcon

PEB Forum Regular Member
PEB Forum Veteran
Hey Buffalo - this is great! Thanks!!! Do you by chance have the attachments or a link through AF Portal for this? I'm sure I will have to educate a lot of people on how to put me back on orders.

Or if you have it in electronic copy, can you PM me and I will give you my e-mail address...

Go to these two member profiles, and select their "download" tabs......it's all there....

View Profile: VAJumper - Physical Evaluation Board Forum
View Profile: Ruptured Duck - Physical Evaluation Board Forum
 

Jack

PEB Forum Regular Member
PEB Forum Veteran
OK - sorry for the delay. My back flared up again and was in severe pain for days. I made some progress! I convinced the MTF that my issue is line of duty (duh!) and they stated they are FEDEX'ing my chart to Robins AFB for review and they should contact me for an appointment. My new questions are:

1. Does the fact that ASTS sent my chart to Robins sound like I am now in the DES?
2. What should I expect next from the great AFRC bag of tricks?
3. Should I request MEDCON orders now that it APPEARS I am finally in the DES for my LOD injury?
4. Should I go ahead and send the letters to my congressmen for assistance?

89 Falcon - I am in GA and I did not request a participation waiver. They told me they will put me on one when I was still on active status (before demobilization) AND my doctor recommended I be kept on orders. The ART at ASTS told me after that request my existing LOD from 2010 would suffice for medical care for my back and that I was not entitled to remain on orders. And yes - that Lt Col Abristor also denied MEDCON orders at my first at bat because my injury was not considered a disability at the time.

DO u live around Tifton???? If so I have a congressional contact who seems to be interested n is on the armed forces committee.
 

rickman

PEB Forum Regular Member
PEB Forum Veteran
UPDATE: I received notification now that I am in the DES and everything so far appears as Line of Duty (AD MEB). With that, I have requested to be put on MEDCON orders (again). I understand what they are saying now about why they released me from AD when I returned in February. The condition you have must be diagnosed as disabling making you UNFIT FOR DUTY. At the time of my first request, the doctors did not note my condition was disabling. I was determined unfit by my PCM (civilian doctor) in June 2011 since the doctor said I cannot perform duties in a deployed environment. You have to use your PULHES and minimum deployment requirements as a checklist for your civilian doctor to determine if you are able to do your job. My position (and all positions in our unit) are deployable so if the MEB finds me unfit and the IPEB (or FPEB) finds me unfit for retraining, they should medically retire me.

I also received a letter from the VA where they are asking for more information from me (most redundant) and I am gathering that now.

For all those going through this fight, focus is important! I cannot tell you how many times I have reread the regs, DODI's and Title 10 paragraphs!

I'm sure AFRC will find some reason to deny my orders again. I have my draft letters ready to go to my Senators!
 

Niels

PEB Forum Regular Member
Hello all. I am in a similar boat. I was injured in Iraq with several conditions that are unfit for duty. Since returning from Iraq in 2006, I was put on FTNG orders and the problems worsened. I was referred to a medical board but they drug their feet and it has been two years now. I have finally received preliminary findings from the Ft. Lewis PEB stating I am unfit for duty and my packet was forwarded to the Seattle VA for ratings a couple of weeks ago. All would seem well, except for the fact that they (the Guard) has now arbitrarily let my orders expire before the Final findings and telling me I have to go on Incap pay. Problem being. I am out pay and such for at least a month before that will kick in. I have read till my eyes bleed the regs, and they seem as if they are just picking and choosing what they want to read, but I can't find definitive proof that they should keep me on till the end of the process... Should I talk to my senator too??? The unit in question told me they are coordinating with the state JAG and IG. I only have a few more days before I will be forced to sign Incap paperwork, but in doing so, forfeit my right to other solutions. It is such a shame that I, after having served honorably for over 15 years and being a combat veteran to boot, am being treated in this way. I have no way to pay my bills with the Incap pay as it is being administered... Any suggestions would be great.
 

rickman

PEB Forum Regular Member
PEB Forum Veteran
Niels,

Take a look at this document from VA Jumper:

Air Force Reserve Participation Waiver Package - Downloads - Physical Evaluation Board Forum

Read through them all. If you were injured on AD for 30+ days and have an LOD for that period and are in the DES, you should remain on orders until found Fit for Duty or completed through the DES (when you are separated/retired).

My problem is convincing them I need to go on orders since I was entered into the DES last week. I have UTA this weekend and hope to have a resolution then.

Good luck!
 

Niels

PEB Forum Regular Member
I appreciate the quick response, and hope you find resolution to the issue yourself as well. Unfortunately I am Army guard. Does this make a difference in the paperwork you linked to me? I agree that they should keep me on active duty to full resolution. I already know based on what my PEBLO said that I am pretty much looking at a medical retirement. And yes, I do have the LODs to prove it happened on Active duty title 10 USC orders while I was in Iraq.

I have read through Regulations galore, and in the Army National guard it seems that Incap pay is also for those who Elect it... I have done no such election. Although, I am getting stone walled by the personnel officer and commander.
 

Jason Perry

Benevolent Leader
Site Founder
Staff Member
PEB Forum Veteran
Registered Member
I have read through Regulations galore, and in the Army National guard it seems that Incap pay is also for those who Elect it... I have done no such election. Although, I am getting stone walled by the personnel officer and commander.

You may have a claim for wrongful discharge from active duty. Consider that option (the route might be either through BCMR or in Federal Court- keep in mind the statute of limitations is 6 years from date of discharge from active duty). As far as INCAP pay, you have to file the application. I have come across many units that flat out refuse to process the paperwork. Again, you have the usual range of options (trying to resolve informally, filing complaints, filing with the BCMR or going to Federal Court).
 

rickman

PEB Forum Regular Member
PEB Forum Veteran
Niels,

Sorry - did not realize your were Army NG - must have misread your status. Jason provides really good advice. Even though the documents I sent you do not pertain to your branch, they are mostly derived from DoDI's and US Code. Look at the references these documents provide and you will probably find the answer you seek.

I personally will file a Congressional Complaint next week if the news from my unit and Medical Unit do not play in my favor. I still have some time left and will explore BCMR and Federal Court soon thereafter if that does not help.
 

Niels

PEB Forum Regular Member
My UA called me up yesterday and he is a good guy. (war buddy of mine) He is trying to reread the regs and make sure of things, but he hinted I write my congressman anyway. I told him I was considering this. He seemed a bit irritated. Not at me, but others. Maybe they are trying to railroad me and he can't say it outloud...
 

rickman

PEB Forum Regular Member
PEB Forum Veteran
Well - I still have to wait a bit longer. My case is not in the DES yet. My ASTS sent copies of my records down to AFRC but they are still waiting on the letter from my CC to proceed. I have to give them a chance before I can take action - even though the CC letter is now 6 days overdue.

A question for everyone that may have had this happen to them. I spoke with the doctor at ASTS about my condition. I know the regs say they cannot take adverse action on me if I do not elect invasive treatment (epidural injection in my spine) until I get a second opinion that supports getting the procedure done. The specifics of the question are, if I get two separate opinions from my civilian provider (both from Pinnacle Orthopedics) for my condition and they both recommend the injection, will that satisfy their requirements or can I get a second opinion from an Air Force doctor to count as my second opinion instead?

My argument is that since I was hurt on AD (ILOD and deployed to a combat zone on orders over 30 days), can I demand they put me on orders to undergo the injection? I do not want to risk something going wrong during the procedure while I am not on status. What if I was paralyzed (even though it is a minimal risk), would the Air Force then say, "oh well, see ya"!

During my conversation with the ASTS doctor, I asked his opinion about what would happen if I received the injection, my pain disappeared (even though it usually is temporary) and my civilian provider lifted me off restrictions (he put a statement on my progress notes stating we will have to wait and see how the procedure affects the symptoms before making a final determination about restrictions), what would the Air Force do? I don't see how they could, but my restrictions being lifted could put me back as fit in the eyes of the Air Force and then I'm screwed. ROM seems to be the governing factor here and if the shots took care of the pain, I probably would not have any claim for limited range of motion and that would also affect my VA claim as well. The ASTS doc told me even if I was feeling 100%, he still would not recommend retention. I can't trust that opinion to be the Air Force's (or even the VA). Someone in either organization could form an opinion since there is no pain, they would deny any disability exists.

My physical therapist advised me against getting the epidural injection. She states she has seen a few people develop tears on their dural membrane which will cause further complications.

The bottom line is the damage is done, there is no reversing that. The shot will not reverse the condition. It is permanent. I did get a verbal opinion from the orthopedic surgeon that would provide the injection during my consultation and he told me the pain could return if I did something to aggravate my back. I have to respect that. Lack of pain puts you in a false sense of security.

Any opinion or experience in this scenario would be greatly appreciated.
 

Niels

PEB Forum Regular Member
Seems to me it is just a bandaid on the wound. Just because they numb it does not mean it is still not an injury. Surely they understand that. You body hasn't repaired, it is just not feeling what your body is telling you. Seems like the Blue Weenie strikes again... (Green weenie for us grunts and for Marines.) Good luck, man. And do not stop pushing.... These guys need to keep fidelity with their veterans.
 

rickman

PEB Forum Regular Member
PEB Forum Veteran
Finally got word today that the CC sent her letter over to ASTS clerk to be forwarded to start my package. Still cannot do anything until I confirm it was sent off to ARPC. I asked the CC for a copy of the letter but she has not responded yet. It's only two weeks late now - sigh...

Guess the next step is an interview with the PEBLO at AFRC. Since my CC is non-responsive/slow and my ASTS clerk answers about 10% of my e-mails, I guess I will have to call her next week to see if she has received anything yet.

Once she receives everything and enters my case into the system I can finally request to be put back on orders. Gotta keep pushing that boulder uphill!
 

rickman

PEB Forum Regular Member
PEB Forum Veteran
Argh!

Spoke with a SNCO at Willford Hall who told me that AFRC should not be involved in my MEB. This is new! This SNCO who I will call MSgt B told me that AFRC should NOT process my MEB because the injury was incurred on AD - makes sense! The bad news being I am back at square 1. The good news is he asked me to send my LOD, my mobilization orders, my Chain of Command POC info, and my AF Form 469 to him and he will get the process started!!!!!

Problem is (and maybe someone can "guess" as to why this happened. I had an AF Form 469 which showed Code 37 (MEB/PEB) and before that expired, I asked if the doc should extend it. He did - but unbeknownst by me, he put it on an AF Form 422. Why did he do that???

I just sent MSgt B an e-mail with all the requested info along with a note about the AF Form 422. He will obtain copies of my medical records from my Reserve base for me but I will have to follow up with the clerk there (like pulling teeth).

MSgt B stated that once a PEBLO from the AD side is assigned to me, I can start MEDCON orders. Just need to have my unit preload the CMAS request and fire it off as soon as the PEBLO contacts me. That will be the date I start orders.

So that makes the third time my medical unit has screwed up my MEB. Not going to put up with their BS anymore. I have completed three separate letters (two senators and one congressman) to look into the whole mess and will send them in the mail tomorrow.

In addition, my wife wrote a nice e-mail to my commander and her commander explaining how frustrated she is with all of this.

November and December UTA's are gonna be fun!
 
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