Command Discretion? Very short timeline. Please help.

MacHero

PEB Forum Regular Member
Registered Member
BLUF: I want to be found fit for duty. But, in the mean time, I am trying to prove I should not even be going to a board in the first place.

I have been searching for answers for days and coming up empty. Where can I find information on command discretion for a unit commander? I am specifically looking for the regulation stating when command authority starts when you assume command. Common sense says, the day your orders begin, but I need to find something I can quote. I am working with some questionable command personnel.

First, it is my own fault for what seems to start this chain of events. I was stopped for speeding towards the end of last year. I got a call from full time command on Monday asking what the deal was. I explained the misunderstanding and nothing more was said. I did missions for Soldiers returning from deployment both the week before and the week after the traffic stop. I had drill weekend a couple weeks later. Again, nothing was ever said. I continued for a couple more weeks of redeployment missions with normal duty.
In January, a new commander comes along. His first drill weekend he orders me to a behavioral health evaluation. In the notification memo, he used the traffic stop as justification from before he was commander.

I know this is not the same, but in AR 27-10, ch 3-8 it reads: b. Termination of status. Nonjudicial punishment will not be imposed on an individual by a commander after the individual ceases to be of the commander’s command, because of transfer or otherwise. However, if UCMJ, Art. 15 proceedings have been instituted and punishment has not been imposed prior to the time of the change of assignment, the commander who instituted the proceedings may forward the record of proceedings to the gaining commander for appropriate disposition.

I am wondering if there is something similar with command discretion. I really feel this is an unfair use of command discretion being that the previous commander did not order a CDE and the new commander does it at his first drill without knowing me at all. All my evaluation reports are good or excellent so there is not a duty performance issue at all.

Well, since this has happened, there seems to be nothing that has been done correctly. The BH evaluation did not follow the applicable DODD or DODI from the notification memo, the declaration of non-confidentiality (and the form you are supposed to sign), to the evaluator being trained for the evaluation and the requirement that command receive the report within 24 hours.
End result: Letter from the G-1 saying I do not meet retention standards and non duty PEB referral, TWO DAYS after I am informed that they are going to recommend MEB. Diagnosis: ADHD.
Command will not provide copies of my records that I need in order to appeal the decision and request the PEB process. I can get copies of all my records except the BH piece to form an appeal. In addition, without my records I can't even know if they thought about any alternate diagnosis like residual TBI (from 2009, LOD) and even sleep deprivation since I get an average of 3 hours a night when I go to drill.

Oh yeah, and the JAG I was assigned for the BH evaluation said, "I recommend you comply." When I tried to ask the repercussion of what if I didn't, "You should know, you've been in long enough." I tried to get a different JAG and was scolded by the state JAG telling me I was 'JAG shopping'.

Sorry for the length. I just am looking for some more to put in writing to help argue my case since I seem to be on my own within my chain of command. ANYTHING you can think of that could help with arguing the ordering of the BH evaluation was beyond discretion would be very appreciated! Thanks!!
 

TSgt Twitch

PEB Forum Regular Member
PEB Forum Veteran
Hrrm, as far as the entire first half of your article, it is a lost battle for you. The commander did not impose a punishment, did not recommend a punishment or anything. The commander used the "traffic ticket" which i suspect was more than simple speeding ticket, to request a mental health eval.. You cannot "fight" that part. Now for the PEB process, you have to go through it like normal and be evaluated etc. and appeal through that process to fight it. You will be given all of your records during the process to form your case as well as several avenues of appeals/reviews etc. That is unless you are at that part, I really have no clue based on what you typed if you have even started the MEB yet. (meb's come before PEB's its part of the process).
 

MacHero

PEB Forum Regular Member
Registered Member
Thank you for your reply. "Stopped for speeding" - no, not simple, quite a bit faster than I normally drive and quite above the posted limit. But that's really it.

No MEB, straight to non-duty PEB for ADHD (and nothing else).
No (BH) records given, the state surgeon refused in violation of AR 40-66. (and did NOT request a doctor to turn them over to, just refused)
All the rest of the medical record was given to me, just nothing I need for the appeal, that was withheld.

The deadline to appeal the not duty qualified was last week, so I guess I am in that (PEB) part of the process and still no BH records. And no PEBLO, if I'm supposed to have one of those.

As I mentioned above, the process for the evaluation didn't come close to meeting the DODD standards. Isn't there supposed to be redress within that?

Jason, do you have any insight into either of my questions for redress?

Side note: This same commander has now in his 7 months of command, had 3 separate EO complaints and at least 1 retaliation complaint. He makes off color jokes constantly and has been spoken to about his behavior at least once that I know of.
My point: In my opinion he doesn't have the highest integrity or good decision making ability.
 

pittpan2005

PEB Forum Regular Member
PEB Forum Veteran
Thank you for your reply. "Stopped for speeding" - no, not simple, quite a bit faster than I normally drive and quite above the posted limit. But that's really it.

No MEB, straight to non-duty PEB for ADHD (and nothing else).
No (BH) records given, the state surgeon refused in violation of AR 40-66. (and did NOT request a doctor to turn them over to, just refused)
All the rest of the medical record was given to me, just nothing I need for the appeal, that was withheld.

The deadline to appeal the not duty qualified was last week, so I guess I am in that (PEB) part of the process and still no BH records. And no PEBLO, if I'm supposed to have one of those.

As I mentioned above, the process for the evaluation didn't come close to meeting the DODD standards. Isn't there supposed to be redress within that?

Jason, do you have any insight into either of my questions for redress?

Side note: This same commander has now in his 7 months of command, had 3 separate EO complaints and at least 1 retaliation complaint. He makes off color jokes constantly and has been spoken to about his behavior at least once that I know of.
My point: In my opinion he doesn't have the highest integrity or good decision making ability.
You could try a FOIA request. I know medical records are in the category of "disallowed," but since they are your own, it may be possible. Also, what's the harm in trying?
 

CW2 Retired

PEB Forum Regular Member
PEB Forum Veteran
Registered Member
Mac Hero,

I have read your story, the speeding ticket--Was it more than 25 over? If so it could be considered a Felony for reckless endangerment. That would possibly call for the BH evaluation.

As far as the PEB/MEB try to contact the OMBUDSMAN at the Military Medical Treatment Facility. They are your advocate for a fair process and can defiantly intervene with a "Shady" Chain of Command. Putting you to a MEB/PEB requires a certain set guidelines that they will have to follow. You will have to be briefed on the process by the MEB clinic. A Peblo will be assigned to explain the process and be your advocate for due process. If you are being pushed out for the ticket then getting a MEB would actually benefit you as if you are found to have a problem or injury that impaired your judgment than the ticket could be reduced for BH issues. Not set in stone but if you had a good JAG they would have told you that. The Ombudsman will have more familiarity with the actual Reg’s to quote for you. Also if all else fails, seriously CALL YOUR CONGRESSMAN. They will usually initiate an Command investigation on your Commander from higher. The Chain above him will have little time to respond thus limiting “BS” answers.

Again:
1. Contact a Ombudsman (ASK the MEB Clinic they will know or Google your Station)
2. Contact your Congressman. (The Military works for them!)

Good Luck, Andrew CW2 Ret.
 

MacHero

PEB Forum Regular Member
Registered Member
pittpan, I was thinking about a FOIA request, but haven't looked up the regs yet on where to send it. The State Surgeon flat out refused when the JAG requested the record. JAG said, "I worked on it for over an hour today and he refused. There is nothing else I can do for you."

Chief,
When you say Military Medical Treatment Facility are you talking about the one in my state or the one where my packet is supposed to be going to for the PEB?
Speeding ticket was 16 over as clocked and 5 over as written. I think I'd be scared to drive that fast (25 over). I was heading home from a week of working redeployment missions for a unit. I was just exhausted and driving fast to get home. Excellent advise. I will follow your guidance. Thank you very much.
 

Jason Perry

Benevolent Leader
Site Founder
Staff Member
PEB Forum Veteran
Registered Member
It appears to me that you are thinking about most of this the wrong way. Your challenge/issue is the non-duty related referral to the PEB for ADHD. (This should be unlikely to be "unfitting" if based on just a speeding ticket- however, depending on how they wrote up the examination, you could have problems).

The CDE for fitness is different than what I think you are concerned about, which would be if they did an involuntary commitment, or Command Directed Mental Health Evaluation.

What was your orders status when both this speeding ticket happened and when you were referred for the CDE?

I think your main issue is with the PEB. However, would need details about what your duty status is/was, and what sort of notifications you received.

The deadline to appeal the not duty qualified was last week, so I guess I am in that (PEB) part of the process and still no BH records. And no PEBLO, if I'm supposed to have one of those.
This is not meant to take you to task, but you should not let suspense timelines go by. It is hard to say how much this matters, as I don't know what regulation they are using to separate you and whether they followed proper notification procedures.

You may have an issue with TBI, but that would only matter if you are unfit- which you indicated you do not want as an outcome.

There is a lot going on in your case and you need to address these issues and fight them unless you are content to let them separate you without benefits. You have started to educate yourself by posting your questions here. That is a start.
 

Robert Albright

PEB Forum Regular Member
PEB Forum Veteran
I would first attempt to get your records under HIPPA. For example a doctor attempted to retailiate against me by diagnosing me with malingering (long story). He also attempted to hide his notes in the system by coding it so that only other doctors could view them. When I saw the diagnosis I went to patient advocacey. They sent me to see the HIPPA clerk who was able to access the information and print me a copy. I then filed a complaint against the doctor under HIPPA and am following up with complaints to the medical board in the state where he is licensed. Need more information on your ADHD. Send me a private message.
 

Robert Albright

PEB Forum Regular Member
PEB Forum Veteran
Also wanted to add that you should comply with the Behavioral Health Eval.

I myself have had a rather colorful history. While in Afghanistan several years ago, I blew the whistle on my supervisor, who was a Major, for embezzling FOO funds. The command retailiated by sending me in for a Psyche Eval. I honestly answered the Psychiatrist's questions and gave him the full details of the situation; additionally I asked him to have me reassigned to another unit. I was founf fit for duty and reassigned that day.
 

MacHero

PEB Forum Regular Member
Registered Member
It appears to me that you are thinking about most of this the wrong way. Your challenge/issue is the non-duty related referral to the PEB for ADHD. (This should be unlikely to be "unfitting" if based on just a speeding ticket- however, depending on how they wrote up the examination, you could have problems).

The CDE for fitness is different than what I think you are concerned about, which would be if they did an involuntary commitment, or Command Directed Mental Health Evaluation.
Thank you for your reply Jason. I'm sorry I wasn't clear enough.

I did get ordered to a command directed behavioral health evaluation (CDE). In the notification memorandum the stated reason for the CDE was "On X date, the X state trooper stopped you for speeding"....
I'm pretty sure with the questionable command I described above and their failure to release any records with any value to an appeal of their decision, you are probably correct when you say "you could have problems".

What was your orders status when both this speeding ticket happened and when you were referred for the CDE?

I think your main issue is with the PEB. However, would need details about what your duty status is/was, and what sort of notifications you received.
Order status on speeding ticket day: AT orders. Status for date referred for the CDE: IDT (National Guard drill)
Notifications received: A 3 page memo that was supposed to be the references, rights and procedures for the CDE. Mine was missing the IG and Chaplain information and phone numbers that is supposed to be in there "at a minimum" per the DoDI.

This is not meant to take you to task, but you should not let suspense timelines go by. It is hard to say how much this matters, as I don't know what regulation they are using to separate you and whether they followed proper notification procedures.

You may have an issue with TBI, but that would only matter if you are unfit- which you indicated you do not want as an outcome.

There is a lot going on in your case and you need to address these issues and fight them unless you are content to let them separate you without benefits. You have started to educate yourself by posting your questions here. That is a start.
Thank you. If I need to be taken to task, then so be it. I didn't miss my suspense timeline. I just do not know anything about the process even after reading all the regs on it b/c it just doesn't make sense to me I wouldn't have a MEB before a PEB. But that is what I'm told is happening.

I was initially notified by a scanned memo from the TAG saying I'm not medically qualified b/c of the ADHD. I had to option at that time to appeal the decision and request a non-duty PEB or leave right then with an honorable discharge. I'd have to look up what regulation is referenced in the memo. I turned in my paperwork for appealing the decision and request the non-duty PEB. (I was given no other choices)

Yes, a LOT going on in my case. It is overwhelming. I am being retaliated against like you wouldn't believe ever since the commander found out I spoke to the EO on someone's behalf as a witness.

Thank you for your help and advice!!
 

MacHero

PEB Forum Regular Member
Registered Member
Also wanted to add that you should comply with the Behavioral Health Eval.

I myself have had a rather colorful history. While in Afghanistan several years ago, I blew the whistle on my supervisor, who was a Major, for embezzling FOO funds. The command retailiated by sending me in for a Psyche Eval. I honestly answered the Psychiatrist's questions and gave him the full details of the situation; additionally I asked him to have me reassigned to another unit. I was founf fit for duty and reassigned that day.
I did comply. I was as kind and professional as I could be. This is the end result so far. I have asked to be reassigned so I can get a fair process. So far I have been denied.

As for getting them through HIPAA, excellent idea. Unfortunately, its the same person that makes the final decision for the records release at my unit who said no. Where would I file a HIPAA complaint then?
I have absolutely been thinking the letters I can write to the state medical board!! Brilliant!

Thank you!
 

Jason Perry

Benevolent Leader
Site Founder
Staff Member
PEB Forum Veteran
Registered Member
Orders status is vital at each step of the analysis. In a drilling/Title 32 status, there are serious limitations on what they can "order" you to do- (You can still be "ordered" to do something while on drill, however, the consequences for disobeying are generally going to be limited to administrative actions. This is a very fact specific issue and you have to look at the issues closely to fully analyze).

You just raised a whistleblower issue with the retaliation allegation.
 

MacHero

PEB Forum Regular Member
Registered Member
Orders status is vital at each step of the analysis. In a drilling/Title 32 status, there are serious limitations on what they can "order" you to do- (You can still be "ordered" to do something while on drill, however, the consequences for disobeying are generally going to be limited to administrative actions. This is a very fact specific issue and you have to look at the issues closely to fully analyze).

You just raised a whistleblower issue with the retaliation allegation.
Is this orders status something you suggest I look into further?

Whistleblower - oh yes. I have a lot of proof I have been keeping as it is happening too. Two examples: Email that cancels my previously approved split train (for a family wedding no less) the same day he found out I went to the EO and an OER that was changed after I digitally signed it in July.
 

Jason Perry

Benevolent Leader
Site Founder
Staff Member
PEB Forum Veteran
Registered Member
Well, orders status at each step will clarify a lot of issues. It is hard to tell whether they have any authority to order you to do things and your rights as far as the disability evaluation system without knowing what status you were in (and, also, how much active federal service time you have).

Your focus, though, should be on the 50 meter target- your PEB.

The whistelblower issue may work to cause problems for your commander; however, it will not likely impact the PEB.
 

89Falcon

PEB Forum Regular Member
PEB Forum Veteran
How to get information:
A FOIA request will NOT get you everything....you need to file a FOIA AND a Privacy Act request at the same time.
here is how you do it:
http://www.foia.af.mil/
if they refuse, you get an appeal...to DC....and you CAN take them to court. It's a VERY powerful law....and if someone is caught "hiding" something, they are in BIG trouble.

Understand this....once you file, they are on notice that you are up to something, and things can REALLY get hostile. IMO, it's a "nuclear" option, and you must be willing/able to fight or a couple years....with no mil pay and no mil status.

I'd recommend you also get a medical diagnosis from a "REAL" specialist who can say you DON'T have ADHD.....
 

CW2 Retired

PEB Forum Regular Member
PEB Forum Veteran
Registered Member
MacHero,

WOW, an EO complaint revieled to the command. If the statment made was to the EO advisor verses the EO Representative than that would exsplain how the CO got wind. Obviously the Chain of Command is dark not shady so be careful.

You are NG so you work for the state government. So Congressman contact maybe on your next 25m target. Just getting the advice of the Congressional investigator would be good. They have probably had problems with your CO bfore that you are unaware of. The PEB is a function of an MEB so the procedures for going through it will unfold when you get briefed. As far as the MTF, you should be seen by a Military or VA Doctor for the MEB/PEB process. Although they might be trying to have it completed on paper without you actually going to any appointments.(I have seen this before) Look for appointments listed or times of evaluations that you where not there.

SO summarry recap:
1. EO -I would not go to IG because they work for command not you so call your Congressman.
2. PEB- Ask who is your PEBLO and if you canot find that information ask for the OMBUDSMAN. The civilian hospitals have an Ombudsman also so they can help you in any medical problems.
3. Go up the chain of command. IE Battalion then Brigade then Garrison/Post then maybee DIvision. They all have an open door policy just let your Platton SGT know you are utilizing the open door policy.

DONT QUIT. Thats what they want. Also google lawyers who do probono for Military.
Well I have seen alot of Chains of command that where "Dark" (It fits better than Shady) and the battle can wear you out. So if the Commander is doing something wrong and against reg's than get proof to take to higher(Congressman) so that when they ask questions he will have no where to run.

Good Luck,
 
data-matched-content-ui-type="image_stacked" data-matched-content-rows-num="3" data-matched-content-columns-num="1" data-ad-format="autorelaxed">
Top