Advice/information re: Petition for Relief (PFR)

bjjwheels

PEB Forum Regular Member
Registered Member
I posted this on another thread regarding Dolphin48, but since that thread is a bit outdated I thought I would start a new thread specific for the PFR (which I can't find too much about in here), as well as private discussion with a lawyer, but my son and his wife can't fund the fee.

"My son, USMC, has tons of paperwork too and strangely had almost the same response in his Formal Board findings, that you had typed on 2-20-13 about the three hour hearing. Wonder if it was the same board members! Makes me think they have prepared 'statements.'

My son just signed papers today (yesterday) stating that he will file a PFR. It seems that what I can glean from the posts above and what my son's attorney want to respond with, do not appear to fit the 3 categories for filing the PFR. So I am glad that you were able to get the "good' part of your PFR. And (shhh) a bit hopeful that my son will at least get a 'good' part as well. My questions to you are: what exactly were the reasons on the PFR (you can send privately if you would rather); how long did it take to get a response; and, were you satisfied with the final outcome (which seems like you were still waiting)?"

Included in the above are a couple of questions, but if anyone has had the experience of filing a PFR, what were the reasons submitted and did they fit into the 3 categories, were there additional medical documentation, what was the wait time, etc.

Additionally, if you filed had you been afforded the opportunity to review any IFEB reconsideration findings on paper or only provided the said findings verbally?


Thanks - a USMC Mom
 
5001 Basis For PFR Within The Disability Evaluation System

a. Following a Formal PEB, when the findings of the PEB become final, and the member has exhausted all of the available options with the PEB, members who have not been discharged or separated, and TDRL personnel, may PFR to DIRNCPB. Members who have been separated or permanently retired may petition the Board for Correction of Naval Records (BCNR). The only basis for relief by means of PFR are:

(1) New Or Newly Discovered Evidence. Upon the presentation of new or newly discovered evidence which by due diligence could not have been presented prior to the effective date of disposition of the individual concerned, which related to a fact in existence at the time of such disposition, which is not merely cumulative or corroborative and not such as to merely affect the weight of evidence or credibility of witnesses or records; and which would have warranted a different finding or action had it been presented; new or newly discovered medical evidence to be accepted must be corroborated by competent medical authority.

(2) Fraud, Misrepresentation, Or Other Misconduct. Upon a showing that the directed disposition of an individual was based upon fraud, misrepresentation of material fact, or other misconduct of such nature that in the absence thereof a different finding would have been made or a different action taken.

(3) Mistake Of Law. Mistake of law is a basis for relief; e.g., failure to accord an individual found Unfit the opportunity for a formal hearing; a directed disposition which was without authority; a decision which is contrary to the great weight of evidence of record.

b. Appeals. Appeals concerning Notice of Eligibility (NOE) and combat-related determinations will not be addressed in the PFR.

(1) For appeals concerning NOEs, contact the appropriate service

headquarters.

(2) Appeals concerning combat-related determinations should be directed to the Judge Advocate General of the Navy (Code 13), Washington Navy Yard, 1322 Patterson Ave SE, Suite 3000, Washington DC 20374-5066.

c. PFRs that cite to the basis for relief in a (1) through a (3) above, without justification or additional supporting evidence in the PFR, will not be considered to have met threshold requirements for consideration. Members are encouraged to consult with their Physical Evaluation Board Liaison Officer (PEBLO) or military counsel for assistance in filing a PFR.

page143image21768

d. When a PFR appeals a LOD/M determination, the DIRNCPB may make a final LOD/M decision in the matter, or, when appropriate, designate the matter as a special interest case, under paragraph 3105 for referral to ASN (M&RA).

SECNAVINST 1850.4E 30 APRIL 2002
 
I have never had a problem with a PFR being rejected for not fitting into any of the above categories (though, I have seen some cases on appeal where this was stated as a reason for rejection). I think almost every valid submission would fall into those bases anyway (at least if they are looked expansively).

The "middle ground" are would seem to be "new legal arguments." However, it is almost non-sensical to reject an argument on this basis as the member does not know the basis for the PEB's decision until after the hearing.

If the matters are rejected, but are valid, it would likely not matter on appeal if they did not fall into the criteria above.
 
Thank you both for your input. Money is always an issue, so can't hire cousel and are using the appointed counsel - thank you.


Frist:
(1) New Or Newly Discovered Evidence. Upon the presentation of new or newly discovered evidence which by due diligence could not have been presented prior to the effective date of disposition of the individual concerned, which related to a fact in existence at the time of such disposition, which is not merely cumulative or corroborative and not such as to merely affect the weight of evidence or credibility of witnesses or records; and which would have warranted a different finding or action had it been presented; new or newly discovered medical evidence to be accepted must be corroborated by competent medical authority.

-----might this include a 4-day emergency in-patient pysch evaluation which followed several days after receipt of the FPEB's findings; was related to PTSD which the Board found to be "not unfitting?"
-----could this include a statement from his psychiatrist stating that a staff member at battalion told the doctor not to prepare the document a year prior as there was sufficient medical injuries/documens to afford the service member a medical retirement, so his addendum was not necessary?

Second:
(3) Mistake Of Law. Mistake of law is a basis for relief; e.g., failure to accord an individual found Unfit the opportunity for a formal hearing; a directed disposition which was without authority; a decision which is contrary to the great weight of evidence of record.

----might/could this include not being provided the IPEB's written reconsideration findings? His attorney was not even provided the written documents until the afternoon, after conclusion of the formal hearing. We were given some verbal information and had asked attorney to provide the written document to condsider (it was not provided until after the formal hearing, and only after requests to the attorney)




Third:
(3) Mistake Of Law. Mistake of law is a basis for relief; e.g., failure to accord an individual found Unfit the opportunity for a formal hearing; a directed disposition which was without authority; a decision which is contrary to the great weight of evidence of record.

----"decision which is contrary to the great weight of evidence of record" --- is this simply the medical evidence (plenty supplied, but some was old because the IPEB packet was completed nearly 10 months ago); also contrary to the NMA that clearly stated he can not perform his job due to many limitations; and a fairly detailed mental health addendum (prepared and updated the week before the hearing stating PTSD among other disorders. Or could this also 'include' the badgering testimony at the hearing? There appears to be many personal opinion statements, and few medical reasons, in the formal findings.



Thanks again for all the information.
 
I have never had a problem with a PFR being rejected for not fitting into any of the above categories (though, I have seen some cases on appeal where this was stated as a reason for rejection). I think almost every valid submission would fall into those bases anyway (at least if they are looked expansively).


---Hoping for a thorough consideration, even if not 'fitting' into the category/ies. Unsure how long the review will take once submitted, but I will pass along the results ---- good or bad.

Thanks.
 
Which is not merely cumulative or corroborative and not such as to merely affect the weight of evidence or credibility of witnesses or records; and which would have warranted a different finding or action had it been presented; new or newly discovered medical evidence to be accepted must be corroborated by competent medical authority.???
lean six sigma
 
Update (posted on several threads):

Two weeks ago we received a copy of the Petition for Relief (PFR) from my son's assigned attorney. As I read it, I wondered why on earth the arguments could not have been so strongly presented at the formal hearing when I told him I did not feel it was going well, based on the harassment from the board members. However, I was quite pleased with the written PFR and felt the lawyer also seem pretty upset at the findings. I would be shocked if not successful; but everything to date had the indication to go well, until results happened.

My son received the reply from the SecNav review board director in response to the Petition for Relief today. Not only was the request that the lawyer submitted (although still silent on many of the injuries) GRANTED at 60%, with a TDRL at 60% for Category I, BUT also rightfully applied the combat classification codes to each of the 3 items:

PTSD (50%) (AC) (czone)
Right Shoulder Tendinitis (20%) with four Category II items (AC) (czone)
TBI (0% currently) (AC) (czone)



This is the basis on which the lawyer, and in which he had 8 pages of what I will refer to as the reasons. He took excerpts from the medical and military documentation and compared it with excerpts from the formal hearing where the board members clearly were making observations and comments not based on the factual information.





Such a shame the service members, and their families, have to battle on the home front, but now my son can fully see the light and the end of the tunnel and is very excited to be able to go home to his wife (separated in different states for almost 2 years.)

Thank you to everyone on this site for the helpful information shared for each other.

USMC Mom
 
And a special thanks to Mr. Perry for his special assistance, as well as creating this forum.
 
I posted something under the FPEB forum earlier today, then shortly after received the FPEB results. The FPEB decision was to remove the IPEB decision of 10% for TBI and they somehow found me fit for duty. I'm trying to figure this out, but plan on submitting a PFR. After a 3 month in-patient TBI/PTSD program at the VA and the last 12 months of out patient treatment both on base and at the VA I am just at a loss for words. feel like they chewed me up and spit me out...
 
My attorney submitted my PFR yesterday and I am now waiting for those results to come back. As Bjjwheels stated above, I am pretty impressed with my attorneys arguements in which he did the same exact thing. He used their words and pointed out my medical records and providers specific comments pointing out that the board used personal judgement and not the thousands of pages of medical documentation supporting my case. He did use Mistake Of Law as the basis for my PFR. I will be sure to pass on the information once I recieve the results in the event my experiences can assist someone else.
 
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