appeal process?

Discussion in 'Post PEB: PDBR, BCMR and Fed Court' started by dubiousjay, Apr 21, 2017.

  1. dubiousjay

    dubiousjay Registered Member

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    my case has left air force processing and is on its way to the army for final review.

    Im worried i might have worded my request wrong and set my self up for a denial.

    I only asked them to consider adding ptsd since the va gave it to me at 50%. I feel I should have asked for a raise in my Post concussion syndrome rating for what i was actually discharged for.

    After reading the scope of the review im afraid they will ignore the post concussion rating.

    If so will i have to re apply asking them specifically to consider post concussion.

    I was discharged at 10%. I was shown (after i applied for pdbr) that DoD criteria for separating someone for post concussion with migraine is 50%
     
  2. jahlon

    jahlon PEB Forum Veteran Registered Member

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    Having migraines, and being debilitated by migraines, are two separate issues.

    You can have migraines that are controllable with medication, or you can have migraines that even with medications affect your ordinary everyday life activities.

    Do your migraines leave you curled up in a ball on the floor of a dark bathroom because light and sound hurt so bad you vomit? If yes, you probably will need to request them consider it.

    But yes, if the migraines are what you were discharged for, you probably should have requested an increase if they were not rated appropriately.
     
  3. TOT31

    TOT31 PEB Forum Veteran Registered Member

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    The PDBR is a one time shot and you are correct Jay; the pdbr only reviews what you list as contentions. You have further recourse in federal court but there is a 6 year statute of limitations with federal courts and your discharge. If you qualify for the pdbr, you probably missed the statute window. This is why I and others on this site recommend for legal representation when filling with the pdbr. A veterans disability lawyer would have contested everything on your original MEB and PEB docs that were used to separate you. It's a horror story that is heard time and time again. I believe the only thing you can contest now would be the results of your pdbr board. Jason Perry is the first person to shed light on the six year statute of limitations associated with a veterans discharge but lately, federal courts have been ordering remand for PDBR cases with discharge dates back to 2004 so I think it's safe to assume that the pdbr board date starts a new 6 year statute. You have to remember that when it comes to the veteran, the us gov will do the least that it possibly can to care for the wounded and the injured even if it's the morally right thing to do. I'm sorry that this is happening. There is no second chance at filing with the PDBR. I would contact the NVLSP or Jason Perry for advice on what to do if anything moving forward.
     
  4. TOT31

    TOT31 PEB Forum Veteran Registered Member

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    Dubious Jay; there might be a legal loop hole. The loop hole appears to be listed on page 8 of the attachment I have applied to this post. It is the Congressional report to Congress on the veterans provisions of the national defense authorization act of 2008 which directed Congress to create the PDBR and upon veterans request review the veterans PEB if the separation of the veteran was less than 30%. Out of this Congressional directive, it looks like DOD ran with it and created DODi instructions 6040.44 which tells the pdbr how to conduct it's review. Now let me make myself clear; read page 8 of the attachment that specifically covers the order to create the pdbr (I thinks it's page 8 or so), Congress tells the DOD to review the veterans less than 30% rating and nowhere does it give the DOD the authority to pick and choose what part of the less than 30% rating. That is the same kind of back handed conduct that led to the creation of the pdbr in the first place. I work alot of veteran advocate cases with great success and have a strong background in gov contractual compliance and oh by the way a combat veteran with over 7 years down range in hostile 2 way ranges that don't include my separate vacations in the horn of Africa and the Balkans. I care about my fellow veterans which is why I sift through this site. In recent years like 2016, a federal judge found that the pdbr was attempting to act as a PEB board without the authority to do so and in 2010, another federal judge found that the pdbr was attempting to not follow the VASRD that was in effect at the time of veterans seaparations for all pdbr applicants who were discharged before the ndaa of 2008 even as it was contrary to law which is why the pdbr now has to. I think you have a strong case and I think the NVLSP would take it in a heartbeat. Remember the ndaa of 2008 was the directive and the dodi instruction was the governments own twist and perception of the order which has proven to be wrong in federal courts. Stay in touch and respond so I know you have this information.
     

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  5. dubiousjay

    dubiousjay Registered Member

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    Thanks for the links. I noticed the reading room was updated but I still don't see my case posted.
     

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