Need Help Quickly!!! MEB/ADSEP concurrently

Joedenney12

Registered Member
#1
turned in referral for MEB on Monday was told on Wednesday my admin sep board for BCP failure is on the 21st. My understanding is that the MEB superseded the adsep, but my lawyers said they had to look into...long story short is I was placed on BCP one day before I got put on limited duty, after 6 months I didn't lose the weight, so they started adsep process then after my 4 month post op on Monday my ortho gave me my recommendation for PEB which I took to IDES. Trying to figure out what the heck I'm suppose to do, so I don't get adseped while waiting on the MEB.

T/Y

-Joe
Marine with 6 1/2 years of service.
 

Jason Perry

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#2
They are wrong. It is not the initiation of the ADSEP that controls.
 

Jason Perry

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#3
SECNAVINST 1850.4E:

Para. 3403:

"d. Non-misconduct/Non-UOTH administrative separations do not supersede or
preclude disability separation. Consequently, final closure must occur on all disability
processing/appeals prior to finalization of Non-misconduct/Non-UOTH administrative
separation by field commanders/service headquarters.
"(Emphasis added).
 

Joedenney12

Registered Member
#4
thank you I have the order printed out and highlighted, now just waiting on IDES Attorney to call me back, to give me the paperwork I need to halt the ad sep, she said it was an easy fix, but they could sep me if my PEB comes back with a FIT finding, do you know what paper work she is going to give me?
 

Jason Perry

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#5
thank you I have the order printed out and highlighted, now just waiting on IDES Attorney to call me back, to give me the paperwork I need to halt the ad sep, she said it was an easy fix, but they could sep me if my PEB comes back with a FIT finding, do you know what paper work she is going to give me?
No, no idea what paperwork they gin up locally. There is no specified form. If I had to guess, it is a memorandum. Doesn't matter much anyway. The law is clear.

Best of luck with your IDES process!
 

Royminus

Registered Member
#6
"Finalization" in SECNAVINST 1850.4E para. 3403 means finalization of the adsep– as in the CG signing the separation letter and IPAC putting it into the system. Everything up to that point (e.g. adsep board) can still happen. A MEB report does not makes the whole adsep process stop. What did the MEB say? Did they recommend a second period of LIMDU? PEB?

MCO 1900.16
* 8308. CONCURRENT LEGAL/ADMINISTRATIVE ACTION INVOLVING MISCONDUCT AND PHYSICAL DISABILITY PROCEEDINGS . In cases combining medical and administrative or legal separation issues, the General Court Martial Convening Authority (GCMCA) shall determine the precedence of administrative, punitive or disability separation processing, balancing good order and discipline with the wel l being of the Marine, and notify the CMC (MMSR-4) of the relevant information and final diposition if disability processing or separation is terminated.

8105
* 2. Marines on light or TLD must maintain proper military appearance and weight control per current edition of reference (bt) MCO 6110.3. The mere fact that a Marine is on light or TLD does not remove the Marine’s responsibility to comply with Marine Corps standards. If a Marine on light or TLD fails to maintain military appearance and weight control standards, that Marine may be subject to administrative action (to include separation).
 

Jason Perry

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#7
"Finalization" in SECNAVINST 1850.4E para. 3403 means finalization of the adsep– as in the CG signing the separation letter and IPAC putting it into the system. Everything up to that point (e.g. adsep board) can still happen. A MEB report does not makes the whole adsep process stop.
Referral to an MEB does not necessarily make any ADSEP stop. However, the regulatory language is clear that "finalization" of the ADSEP cannot occur until final disposition of the DES process. I have dealt with concurrent processing of disability and both misconduct and non-misconduct in many cases. This is at the original level, in BCMR/BCNR cases, and in Federal Court. While I have seen the services sometimes make errors and actually separate members, the case law in the Federal Courts do not allow non-misconduct separations to take precedence over disability processing. Any such non-misconduct separation made after actual referral to the DES or when the referral should have been made but was not will not withstand judicial review.

MCO 1900.16
* 8308. CONCURRENT LEGAL/ADMINISTRATIVE ACTION INVOLVING MISCONDUCT AND PHYSICAL DISABILITY PROCEEDINGS. In cases combining medical and administrative or legal separation issues, the General Court Martial Convening Authority (GCMCA) shall determine the precedence of administrative, punitive or disability separation processing, balancing good order and discipline with the wel l being of the Marine, and notify the CMC (MMSR-4) of the relevant information and final diposition if disability processing or separation is terminated.

8105
* 2. Marines on light or TLD must maintain proper military appearance and weight control per current edition of reference (bt) MCO 6110.3. The mere fact that a Marine is on light or TLD does not remove the Marine’s responsibility to comply with Marine Corps standards. If a Marine on light or TLD fails to maintain military appearance and weight control standards, that Marine may be subject to administrative action (to include separation).
The above references do not derogate from the main point- disability processing takes precedence over all non-misconduct separations. 8308 applies to cases involving misconduct. BCP failure is not a misconduct related separation. 8105 only references Marines on TLD and misses the operative issue- the Marine being placed in the DES process.

Every once in a while, commands will try to say that failure to meet BCP (or in other services, Height/Weight or body fat standards) is "misconduct." This is flat out wrong.
 

Joedenney12

Registered Member
#8
So everything I have been told from legal, my command and the head of IDES is my med board has to be sent in to take precedence over adsep; the only way to pause the adsep is to have that sent off prior to getting a 10 letter, so I had to cancel my holiday leave to schedule all my VA appointments in the hope I can get the board sent off before I get a 10 letter. Can you show me something in the federal law I can take in to show them. They are saying since my BCP ended in August, that's when they started the Adsep processes and the Med Board referral doesn't matter unless I can do what I stated above. Thanks for the help and advice guys, just hope I figure something out to help or get the board sent off in time