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Army FPEB; Overcoming Presumption of Fitness (PFIT)

BrokenArrow86

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PEB Forum Veteran
Registered Member
Hello,

First of all, thanks to everyone on this forum! Without it I would be so lost, as my PEBLO definitely doesn't know anything other than how to copy/paste.

I am currently moving into the FPEB phase. Unfortunately, the IPEB found me "fit by presumption", I have seen this called PFIT in other forums here. I have talked to the MEB lawyer, who reviewed my case and didn't have much to say other than reviewing and concurring with the appeal letter that I wrote. I will try to breakdown my situation in enough detail, and hopefully this thread can confirm or help my strategy.

1. I am an officer in the Army and have been passed for promotion twice. I have received high marks on my annual evaluations (apparently evidence of PFIT) and, in many cases, have a better evaluation record than my peers that have been promoted. What I am lacking is the required Professional Military Education (PME) for my next grade. I was also designated as MRC4 during the promotion boards.

2. I have been dealing with my back injury for over 2 years now. During that time I had to cancel my PME, and have never recovered enough to meet attendance requirements.

3. In October I received notice that I was being involuntarily separated due to the 2 time no select law. This is also when my presumptive period began.

4. In November I was referred to the MEB. Fast forward to 1 April, 100% VA recommendation letter.. and after 69 days I received my PFIT 199 from the IPEB. PFIT was due to: MEB initiated after presumptive period began, high marks on evaluations.

My strategy loosely defined in my appeal letter is to show:

A. I do not meet DoDI 1332.18; as that is for retirement, as I am not retiring
B. I can overcome the presumption as defined in AR 635-40 for separation by:
a. Even though my evals received high marks; I will get letters from my past raters/senior raters/co-workers that describe my physical condition being accommodated for (as any good leader does for a Soldier they hope will recover), they will also state that if I cannot recover that I am not fit to serve as a Soldier. I then link these statements to the NARSUM saying I won't recover in a 3 year period. Lastly for letters, I will also ask my commander to update the commanders letter more in line with what the PEB needs to hear (still true, but worded in a way they might better understand).
b. I will also argue that several of my disabilities worsened and built on each other due to stress after my presumptive period began (Anxiety/PTSD, IBS, Hypertension, Tinnitus, Sleeplessness) that combined make me unfit.

I have already determined by my C&P writeups, that I will likely qualify for 58-70% DoD disability without my post presumptive period conditions. My back flexation should = 40%, and my radiculopathy should be 20-40% (depending on DRAS) with bilateral factor bumping it up to 30 or 50% respectively, then do the funky math for 40+18 or 50+20...

In short: injured > had to drop school > not promoted without school > involuntary separation without promotion = injury causing my career to end.

I have already looked into the regulations and found the items I want to focus on. What I really need is opinions based on experience if this strategy has been successful before, and what has helped in addition to these items for other people. I know that I won't get a PEB lawyer until a day before my case, so knowing what to gather while I am in limbo will be greatly appreciated.

Bonus Question: Since I will be getting out whether I am found FIT or not, will I actually have to redo my whole VA claim, possibly lose my 100% recommendation, and wait for months for the paperwork to be done again?

Thanks!
 

dracon

Member
PEB Forum Veteran
Registered Member
Bonus Question: Since I will be getting out whether I am found FIT or not, will I actually have to redo my whole VA claim, possibly lose my 100% recommendation, and wait for months for the paperwork to be done again?

Thanks!
It is my understanding that VA ratings stand regardless of fitness
 

johnbgately

PEB Forum Regular Member
PEB Forum Veteran
Registered Member
Hello,

First of all, thanks to everyone on this forum! Without it I would be so lost, as my PEBLO definitely doesn't know anything other than how to copy/paste.

I am currently moving into the FPEB phase. Unfortunately, the IPEB found me "fit by presumption", I have seen this called PFIT in other forums here. I have talked to the MEB lawyer, who reviewed my case and didn't have much to say other than reviewing and concurring with the appeal letter that I wrote. I will try to breakdown my situation in enough detail, and hopefully this thread can confirm or help my strategy.

1. I am an officer in the Army and have been passed for promotion twice. I have received high marks on my annual evaluations (apparently evidence of PFIT) and, in many cases, have a better evaluation record than my peers that have been promoted. What I am lacking is the required Professional Military Education (PME) for my next grade. I was also designated as MRC4 during the promotion boards.

2. I have been dealing with my back injury for over 2 years now. During that time I had to cancel my PME, and have never recovered enough to meet attendance requirements.

3. In October I received notice that I was being involuntarily separated due to the 2 time no select law. This is also when my presumptive period began.

4. In November I was referred to the MEB. Fast forward to 1 April, 100% VA recommendation letter.. and after 69 days I received my PFIT 199 from the IPEB. PFIT was due to: MEB initiated after presumptive period began, high marks on evaluations.

My strategy loosely defined in my appeal letter is to show:

A. I do not meet DoDI 1332.18; as that is for retirement, as I am not retiring
B. I can overcome the presumption as defined in AR 635-40 for separation by:
a. Even though my evals received high marks; I will get letters from my past raters/senior raters/co-workers that describe my physical condition being accommodated for (as any good leader does for a Soldier they hope will recover), they will also state that if I cannot recover that I am not fit to serve as a Soldier. I then link these statements to the NARSUM saying I won't recover in a 3 year period. Lastly for letters, I will also ask my commander to update the commanders letter more in line with what the PEB needs to hear (still true, but worded in a way they might better understand).
b. I will also argue that several of my disabilities worsened and built on each other due to stress after my presumptive period began (Anxiety/PTSD, IBS, Hypertension, Tinnitus, Sleeplessness) that combined make me unfit.

I have already determined by my C&P writeups, that I will likely qualify for 58-70% DoD disability without my post presumptive period conditions. My back flexation should = 40%, and my radiculopathy should be 20-40% (depending on DRAS) with bilateral factor bumping it up to 30 or 50% respectively, then do the funky math for 40+18 or 50+20...

In short: injured > had to drop school > not promoted without school > involuntary separation without promotion = injury causing my career to end.

I have already looked into the regulations and found the items I want to focus on. What I really need is opinions based on experience if this strategy has been successful before, and what has helped in addition to these items for other people. I know that I won't get a PEB lawyer until a day before my case, so knowing what to gather while I am in limbo will be greatly appreciated.

Bonus Question: Since I will be getting out whether I am found FIT or not, will I actually have to redo my whole VA claim, possibly lose my 100% recommendation, and wait for months for the paperwork to be done again?

Thanks!
If you are an active duty service member and are found fit, then the case is closed and no VA rating is finalized. If you are a Guardsman or Reservist, however, you can be found fit and still receive a VA rating.
 

BrokenArrow86

Member
PEB Forum Veteran
Registered Member
Recommend you invest in a great attorney.

PEBLAWYER.COM
Sir,

I see you give a lot of good advice here. Are you recommending a lawyer due to my strategy being poor? The number of PFIT cases that are not overcome? The question is more complicated than you are able to answer in this forum?

Thanks!
 

Paramount

Member
PEB Forum Veteran
Registered Member
Thanks! Also, feel free to mind your own business. Stop acting like a teen behind a keyboard who says stuff to people without knowing ANYTHING about them.
Hey BrokenArrow86,

You stated this above.

2. I have been dealing with my back injury for over 2 years now. During that time I had to cancel my PME, and have never recovered enough to meet attendance requirements.

I had this same issue but on enlisted side. Back flexion at 40% rating already with the VA.

However a med board was put on hold due to a LOD that needed to be revised (which took a year). They would not start a medical board without this.

My question to you is did you talk to a case manager on this? So your PT and other things show that you could not go to school with the issues? I'm just curious what experience was with this.

Thanks
 

BrokenArrow86

Member
PEB Forum Veteran
Registered Member
My question to you is did you talk to a case manager on this? So your PT and other things show that you could not go to school with the issues? I'm just curious what experience was with this.
I never had a case manager. My unit worked with HRC with my branch manager. They used a copy of my temporary profile and said that I wasn't allowed to attend, canceled my school, and wouldn't let me re-apply (I tried) until my medical readiness code (MRC) indicated I was fit enough.

For the PEB, I did ask my branch manager if they would write a memo. But they are new and apparently they don't have access to any records what the previous guy did (at least that's what they told me). Unfortunately the last branch manager is no longer in the military.

As far as PT, my last full PT test was before my injury. I did very well, as I have been a professional Soldier for 17 years. The only event I could do for my last APFT was the bike (again, temporary but over 90 day profile) I did great on the event (~16min/25min allowed), but unfortunately that part doesn't matter for TRADOC. They won't let you attend with a temp profile.

So at the end of the day, all I have is the regulation on PME attendance, my injury history, and MFRs from my previous supervisors confirming my statements.

I hope this helps, but unfortunately it hasn't been proven to help me yet.. so take my experience for what it is.
 

Paramount

Member
PEB Forum Veteran
Registered Member
No it does. I had a temp profile at first with the injury. Then quickly changed to Permanent profile initiated thereafter (approx. 45 days) previous to injury I was trying to go to ALC for my E6. Obviously after the permanent profile was signed I could not attend anymore as per the spine injury much like yourself.

That sucks they didn't put you on a permanent profile. So were you on temporary profiles that they kept extending out for those 2 years you mentioned? Im sorry that happened man. I'm hoping your legal meeting will fix this for you. Especially if they did kept extending the Temp profiles for that long then that's the wrong answer. It sounds like you have a bit of a fight. I'm hoping legal council can get you through that and make it right. You shouldn't be getting hosed for an in service injury.
 

chaplaincharlie

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Lifetime Supporter
Registered Member
Sir,

I see you give a lot of good advice here. Are you recommending a lawyer due to my strategy being poor? The number of PFIT cases that are not overcome? The question is more complicated than you are able to answer in this forum?

Thanks!
An attorney was recommended because presumption of fitness is in play. Your case is therefore extraordinary.
 
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