Under investigation while MEB

C

confusedguy

PEB Forum Regular Member
Registered Member
I signed my DOD rating from PEB and sent it back for PDA (Physical Disability Agent) for the last approval.
DOD rating 70% for PTSD and Depression
My NARSUM and medical records show my behav health issues (aggravated by the military), nonetheless, my NARSUM also stated that I have been found unfit b/c I cannot perform my current PMOS (Nurse). My leave supposed to start the day they called me in to give me the counseling. The counseling is to inform me that I am being suspected for 3 charges. When I was going through the IDES, I was told I would have 100 days to be out the military. I took a job offer as a (Nurse), while I was still in the Army going through MEB to secure income when I do leave the military. Rent, car notes, 2 dependents, and other bills were my worries. So, I took the job offer, but I still looked for administrative jobs, less stress, and hoped to find one so I could leave the current job as a nurse.
Now, back to the Army, they gave me the counseling and said that I am being under investigation. They want to charge me with fraud due to va claims and malingering. Which are not true. I've been having serious issues since early teens. Admitted to inpatient once, and I spent 5 months in partial inpatient psychiatric programs. Suicidal attempts.
The PDA have put me on a re-call status. whatever that means. Which my orders will be revoked. Do you think this is due to my Flag, from the command, or the PDA is making that decision on their own?
What are my possible outcomes or charges?
What are my fighting chances?
If they find, or will find, out about the job, can they charge me with the fraud and malingering even though they're not true?
Any information is good information.
Anything at all.
 
Article 115 should max out at dishonorable discharge, forfeiture of pay and allowance, and 1 year of prison.
Article 132 should max out at same plus 5 years in prison.

There is a big difference between an investigation and charges though. This situation could develop in almost any number of ways. Charges, guilty finding, investigation dropped, who knows.

Likely your command contacted the PDA and told them about the investigation. PDA will put things on hold until it has been determined your conditions are on the up and up.

Its difficult to think accepting a civilian job is relevant. Civilian standards for being a nurse are quite different than military ones. I doubt that will be sufficient to establish malingering or fraud. I wouldn't make any assumptions about that until after I talked to a TDS lawyer though. If you said something such as the sight of blood alone triggers PTSD, accepting a civilian nursing position then becomes problematic I imagine and it may require careful explanation. I find it hard to believe there is something criminal in accepting a job that will be difficult with your disabilities and hoping that they can accommodate your disabilities better than the military.

They certainly can bring up charges for things that are not true. In theory, you would then be found innocent at the court-martial. Fighting chances would best be answered by the specific lawyer who would be helping you, too many variables to trust the answer from anyone else.

From what you have stated, I'd be more concerned about a fraudulent enlistment coming out of the investigation, more than the other charges. I would be cautious with what you say, as things may come at you sideways. Article 31 rights are quite important, I believe.
 
Seems a lot like retaliation. I have a hard time understanding why a command would halt a PEB once it was submitted to the PDA.

Unfortunately it is going to take competent legal counsel to fight the charges, I would look outside the TDL.
 
Sign the papers, say nothing yet, and talk to a JAG attorney ASAP. In the meantime don't go into overdrive trying to figure out what the investigation may or may not include, that's your JAG attorney is supposed to do.

If the issue turns out to be that you sought employment as a Nurse for after the military and state that you can't handle being a Nurse in the military, be prepared to show the reasons why there is a difference, and include that whether you are mentally able to handle the Nursing field or not, you still need to provide for your family.

As for malingering, unless you're faking and they have clear cut proof, which is very hard to do with mental issues, this feels more like a harassing move designed to rattle your cage. Don't "assume" either way, get legal representation immediately and let your attorney find out what's up.

Hope this helps...
 
I sought TDS and all he said was all I could do now is to wait to see what the investigation officer finds. And of course, don't speak to anyone. And fraud is the one I worry most about. But it's a crazy world for something I'm not guilty of

With the military nursing side and civilian side are totally two different things. What was written in my counseling is they're trying to say I'm doing exact same job, which is far from true. Idk what I should or shouldn't do with the VA claims because it's not completely.

What level of command can or cannot charge me with the serious convictions?
 
The seeking employment, tied to malingering thing makes zero sense to me...

It is part of a comprehensive transition plan that is supported by all branches of the service. While I was in the WTU, going through a MED board, I was in a Federally sponsored internship program (Operation Warfighter) in which I went and did job training (worked) while I was entitled to Active Duty pay. This was in lieu of spending my day with my military unit doing nothing.

You are not getting med boarded out because you cannot perfom your job as a nurse, you are getting med boarded because you do not meet the standards for retention according to AR 40-501 and the MEB/PEB has found you not fit for duty.

There are too many checks/balances in place to allow a malingerer to make it through a MEB/PEB and for a command to charge someone with malingering once they have been sent to the PDA, points to retaliation to me.

This opinion of mine is based upon what you presented, so if there is more to the story, only you and your command know right now.
 
They're tying the job with malingering bc I took the job offer as a nurse while I can't do my job as a military nurse. I have job descriptions on both military n civilian side. The job I tool was only on call. Which I don't work full time or part time. I've only completed the orientation part. Meanwhile, I was applying for administrative jobs, which I can show but idk if that helps or even relevant.
 
If you took orientation only for a job, you should be OK, I think the command is getting wrapped around the axle. You were not med boarded because you could not perform your job as a nurse.

You were med boarded because you do not meet the standards for retention according to AR 40-501, susequently a PEB found you not fit for duty.

I would be willing to be that on your permanent profile (DA 3349), it does not state that you are unable to perform all tasks relating to nursing. Additonally there are many aspects that are related to nursing that are not parrallel with the standards of fitness in the military.

http://www.polk.amedd.army.mil/docs/meb/da3349.pdf
 
This is my take on the action...

  1. The somebody in the command has a personal vendeta, in my opinion seeking employment with an imminent medical discharge is normal activity.
  2. Accepting employment while entitled to active duty pay, with an immiment medical discharge is normal activity.
  3. Performing outside work without an OWA with your Commander's approval while entiled to active duty pay is not normal activity.
  4. If any actions that you took to seek employment while you were entitled to active duty pay, intefered with the MED or PED, than that would not be considered normal activity.
There must be some sort of reason that this action has been brought on you, besides the activities that they are claiming.
 
Speak to an an attorney and only to an attorney (or your military chaplain). No one else. Make no written statements. No not attempt to defend yourself.
 
It's number 3. that is one out of 3 offenses they're charging me with:
1. failure to obey
2. fraud - va claims
3. malingering
 
Lawyer up... go to TDS or get the MEB Jag attorney to represent you.

Do not, for any reason, give a sworn statement. these are required generally for 15-6's, but it is your right legally to refuse to make a statement because it can and will be used against you.
 
another thing you can do that may help is to get an independent full neuro-psych eval done. there is a portion of this testing designed to detect malingering. I did one and it took 8.5 hours to complete all of the testing. It confirmed that I had high levels of anxiety and depression and it also stated that I was not a malingerer and that I appeared to have no motive for secondary gain.
 
what did that test state as far as if you did or did not seek out assistance due to "secondary gain" or not? what did the test state about malingering, or did it say you were not malingering?


I ask because if your results state you are in no way malingering or going through the motions for secondary gain (medical retirement), then this test could help you legally to refute the malingering charge against you. My neuro psych eval specifially stated that I was not malingering and had no implications of seeking secondary gain (benefits, retirement, etc).
 
Mine stated this:

"His symptoms do not appear to be feigned or intentionally produced nor is there evidence of external secondary gain"
 
The doctors were already diagnosising me with PTSD, axniety, and depression
The test given by the psychologist was the confirmation for my diagnoses and they became my major conditions besides other ones.
 
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