EPTS condition and 8 year rule

OrdinaryAFguy

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I am Air Force, currently active duty with just shy of 8 years of service (TAFSC). I am getting MEB’ed for a congenital heart condition that I was unaware of prior to my service. In April, the FPEB opined that because my condition existed prior to service, that I should be separated with 0 percent disability, not even severance. I appealed to the SECAF (just got the results back) they upheld the results of the FPEB, recommending separation with 0 percent disability.
The thing is, I hit my 8 year mark on 12 December of this year. I should have enough out-processing time/PTDY and terminal leave days to carry me well past 12 December. As of today, they havent started out processing me yet. Does anyone know how the Air Force applies the 8 year rule in cases like this? Do I need to try some serious stall tactics to make sure that I am still on active duty on December 12?
 
There are two questions here that need to be answered. The first is, even though the condition is congenital, when you were examined for entry onto active duty, you are presumed fit at that point. At any part of your MEB/PEB process did you put up an argument that the condition was aggravated beyond normal progression? (basically, had you never joined the service, would the condition be currently present).

The PEB must present clean and unmistakable evidence that your service in no way contributed to the aggravation of your heat condition.

The second question do you have any other appeals that you can use to buy some more time? I highly suggest you try to contact @Jason Perry www.peblawyer.com
 
There are two questions here that need to be answered. The first is, even though the condition is congenital, when you were examined for entry onto active duty, you are presumed fit at that point. At any part of your MEB/PEB process did you put up an argument that the condition was aggravated beyond normal progression? (basically, had you never joined the service, would the condition be currently present).

The PEB must present clean and unmistakable evidence that your service in no way contributed to the aggravation of your heat condition.

The second question do you have any other appeals that you can use to buy some more time? I highly suggest you try to contact @Jason Perry www.peblawyer.com

Thank you for your quick response, gsfowler. So regarding your first question: No, the condition was not noted on my entrance exam. The AF discovered this heart condition almost 4 years ago after I began complaining of chest pain with exertion during PT sessions. The FPEB determined that my condition is congenital based on research that one of the doctors on the board had done in his reading of medical journals.

Regarding service aggravation: My attorney argued that the AF has to present clear and unmistakeable evidence that the military did not worsen my conditon. The FPEB ignored her and simply stated that the military didn’t worsen it, which shifted the burden of proof back to me prove that the military did worsen my condition. My attorney was very frustrated by that but told me that the Air Force FPEB often makes arbitrary decisions, ignoring the rule of law.

We put together a strong appeal to the SECAF, and did present clear and unmistakeable proof that the military had worsened my condition beyond natural progression. Unfortunately, it was almost as though the SECAF didn’t even read my appeal. In their explanation of their decision, they pretty much cut and pasted the verbiage from the FPEB decision.

So that is where I am. My attorney thinks that my only play right now is to get the AF to apply the 8 year rule. But I just don’t know if they would apply it at this point based on my terminal leave balance, PTDY and out processing days which would make my final out sometime in late December/early Jan.
Overall, I am worried that the AF will ignore the 8 year rule just like they ignored the regs during my FPEB.
 
I think the 8 year rule will apply. I encourage you to delay at every opportunity. You may have to apply post departure to the BCMR. It will not be quick. You will probably end up in court.

With regards to congenital, some conditions have a congenital cause others have a congenital association. Cause means the condition is always from birth, association means there is a statistically significant link. There are always exceptions to association. If your condition is only "associated" with birth; then the government would have to prove EPTS; not assume it statistically. In either case the 8 year rule would apply.

I am glad to hear you have an attorney. Is he/she civilian? If not I suggest you have one who will remain with you from start to finish. One that has considerable experience in the MEB/PEB/BCMR/federal court might best serve your interest.

Best wishes.
 
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