This thread is for discussing everything related to fitness and unfitness in the PDES.
Fitness vs. Unfitness
- Thread starter Jason Perry
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The fitness question
Many Soldiers are confused about why the Board did not rate one or more of their conditions. The Medical Evaluation Board (MEB) may have found a condition to be medically unacceptable and recorded that condition on the Soldier's DA Form 3947 (Medical Evaluation Board Proceedings). However, the PEB may have not given the Soldier a rating for that condition. Sometimes, Soldiers are confused about this and want to submit letters from doctors proving that they have this condition. This is not helpful to the case if the Board has found the condition to not be separately unfitting. That is because the PDES is a performance based system that only rates conditions that keep a Soldier from performing his or her duties.
Title 10 US Code, Chapter 61, Sections 1201 et. seq., state that disability benefits depend "pon a determination by the Secretary concerned that a member...is unfit to perform the duties of the member's office, grade, rank, or rating because of physical disability...". This law means that the Board can only rate those conditions that render a Soldier unfit to perform their duties.
Some Soldiers feel this is unfair. Whether it is or not is a policy question, but it may help to understand the purpose of the PDES. AR 635-40, para 3-2b. (1), explains the purpose this way: " (1) Disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service." So, is a Soldier out of luck in getting compensation for conditions that are not unfitting? Not necessarily. The VA will compensate for service connected disabilities.
One last thought. What should the Soldier do if he believes his condition is unfitting? More proof of the existence of the condition is not helpful. The evidence needed to demonstrate unfitness must relate to the condition causing limitations or shortcomings in performance. This can include profiles that limit performance because of the disability, Commander's/First Sergeant's Letters documenting limitations, Counseling statements, OER/NCOER's, or medical evidence that clearly demonstrates inability to perform duties.
Many Soldiers are confused about why the Board did not rate one or more of their conditions. The Medical Evaluation Board (MEB) may have found a condition to be medically unacceptable and recorded that condition on the Soldier's DA Form 3947 (Medical Evaluation Board Proceedings). However, the PEB may have not given the Soldier a rating for that condition. Sometimes, Soldiers are confused about this and want to submit letters from doctors proving that they have this condition. This is not helpful to the case if the Board has found the condition to not be separately unfitting. That is because the PDES is a performance based system that only rates conditions that keep a Soldier from performing his or her duties.
Title 10 US Code, Chapter 61, Sections 1201 et. seq., state that disability benefits depend "pon a determination by the Secretary concerned that a member...is unfit to perform the duties of the member's office, grade, rank, or rating because of physical disability...". This law means that the Board can only rate those conditions that render a Soldier unfit to perform their duties.
Some Soldiers feel this is unfair. Whether it is or not is a policy question, but it may help to understand the purpose of the PDES. AR 635-40, para 3-2b. (1), explains the purpose this way: " (1) Disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service." So, is a Soldier out of luck in getting compensation for conditions that are not unfitting? Not necessarily. The VA will compensate for service connected disabilities.
One last thought. What should the Soldier do if he believes his condition is unfitting? More proof of the existence of the condition is not helpful. The evidence needed to demonstrate unfitness must relate to the condition causing limitations or shortcomings in performance. This can include profiles that limit performance because of the disability, Commander's/First Sergeant's Letters documenting limitations, Counseling statements, OER/NCOER's, or medical evidence that clearly demonstrates inability to perform duties.
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Some examples
I use this example to explain how the fit vs. unfit finding works. The biggest problem people seem to have in understanding this is the fact that they may have the condition but they are fit. When this is the case, no amount of further testing, diagnoses from doctors, or lab tests will change the outcome. This example sometimes helps people understand.
One day, two Soldiers board an aircraft for a jump. The first is an E-4 in the infantry. The second Soldier is an O-4 Finance Corps officer. They both hit hard on landing and both twist their right knee. They are taken to the MTF where they are found to have both torn the same ligaments in their right knee. The orthopedist is amazed because they have the exact same condition. Well, after a year of rehab after surgery, they both have recovered to the exact same degree. They both still have painful knees that result in profile limitations on their duty performance to include a "no" for the ability to carry a fighting load at least two miles. For the E-4 infantryman this is very likely an unfitting condition because he needs to be able to carry a fighting load over more than 2 miles to reasonably perform the duties of his grade and MOS. However, the Finance Corps major has no such duty requirement. He can reasonably do his job without rucking any distance whatsoever. So he is likely to be fit. Two Soldiers, same condition, but based on their grade and MOS, two different outcomes as to fitness at the PEB.
I use this example to explain how the fit vs. unfit finding works. The biggest problem people seem to have in understanding this is the fact that they may have the condition but they are fit. When this is the case, no amount of further testing, diagnoses from doctors, or lab tests will change the outcome. This example sometimes helps people understand.
One day, two Soldiers board an aircraft for a jump. The first is an E-4 in the infantry. The second Soldier is an O-4 Finance Corps officer. They both hit hard on landing and both twist their right knee. They are taken to the MTF where they are found to have both torn the same ligaments in their right knee. The orthopedist is amazed because they have the exact same condition. Well, after a year of rehab after surgery, they both have recovered to the exact same degree. They both still have painful knees that result in profile limitations on their duty performance to include a "no" for the ability to carry a fighting load at least two miles. For the E-4 infantryman this is very likely an unfitting condition because he needs to be able to carry a fighting load over more than 2 miles to reasonably perform the duties of his grade and MOS. However, the Finance Corps major has no such duty requirement. He can reasonably do his job without rucking any distance whatsoever. So he is likely to be fit. Two Soldiers, same condition, but based on their grade and MOS, two different outcomes as to fitness at the PEB.
This may be my exact situation of being unfit but fit. As a Marine all Marines are riflemen, expected to act as such but also designated a specific MOS in my case Data Systems. If you read my mos up in the MOS manual you will see that it says that I am mostly just responsible for setting up and maintaining networks - mostly brainwork. but because my chronic pain in my neck and back from the MVA i was involved in on OCT 15TH 2006 I feel that its very hard to concentrate to do my job and I have been suffering doing it. Even so that I have been suffering it would seem that I am still doing a kick ass job at my work. This being said I may be seen as fit since I can still sit in front of a computer, in pain, and work.
I am also the Station Commander's driver and have been doing that as a colateral duty since my MVA! This makes my situation look even worse I think..... Would it help me at all to have the Station Commander (O-6) write a letter saying that the injury has affected me some how?
I am also the Station Commander's driver and have been doing that as a colateral duty since my MVA! This makes my situation look even worse I think..... Would it help me at all to have the Station Commander (O-6) write a letter saying that the injury has affected me some how?
i dont know about the Marines, but the Army looks at it is "can he do his basic soldier skills" like load and fire his/her weapon, can you hump 2 miles with a 40 pound ruck, can you dig a defensive position. if you CAN, then you may be deemed fit, but not as an infantryman. we would look into reclassifying to an MOS like for example "Remington Raider" (clerk typist), but as you stated every marine is a rifleman first. as for me, i cant load my magazine past the 4th or 5th round as i have no strength in my thumbs to push the round down, and its difficult to pull back the charging handle using my pinky finger.i cant do the P.T. test anymore. If your desire is to reclass to stay in the service, ANY kind of positive letters wouldnt hurt, after all ,theres a Marine deployed back to Iraq as an amputee because he wanted to be found fit. ( pretty ballsy guy) when i was in the Corps, i never knew of anyone that had a profile that precluded them from p.t or the p.t. test. when i went into the army and heard of this, i thought you gootta be kidding me. of course i was only 17 years old at the time i joined the Marines, and wasnt broken down then. good luck amigo! martin
I'm in the unfit category wanted to stay in. My IPEB cam back with an unfit finding and 20% disability. I am an insulin dependant diabetic just recently diagnosed. I can no longer perform by present duties (only because of flight medicine standards) but I can perform just about any other job. I have 12.5 years in the AD Air Force. My Commander's letter and Narrative Sumary from my specialist were both very supportive for a fit finding.
So now what? I appeal. But what else do I need to do to convince the Formal Board to keep me in. My Commander, Specialist and Flight Commander will all be present to support me. Am I missing anything?? Do I need more letters and witnesses?
So now what? I appeal. But what else do I need to do to convince the Formal Board to keep me in. My Commander, Specialist and Flight Commander will all be present to support me. Am I missing anything?? Do I need more letters and witnesses?
I didnt know that my AFSC had anything to do with my MEB? I am a cop in the Air Force. I have been unable to do my primary duties or carry a weapon because of my conidition now for 4 months. Are you telling me that if I was in a different career field, my MEB results could be different. Even if someone else was suffering from thr exact same condition? I thought that the factor was deployability, which I am also not able to do at this time. It just seems unfair.
This is how I've come to understand it. However, I think there are other concerns besides just your rate, though; being able to do emergency drills, being able to navigate your work area (climbing, if need be, swimming, running, that kind of thing). Also being able to do the fitness exam. At least I hope these are taken into consideration for the servicemember, it is a huge portion of the job requirements of being in the military.
AFI44-157
This is a commander responsibility. If the unit commander feels that the member is not capable of performing in an AFSC, the commander requests retraining through the military personnel flight.
Would if you had a bad knee and your an admin troop working in orderly room. Or if your SOCOM & jump Qual. Big difference in the usage of your knee.
My friend had some kinda rash thiing on his feet, he was SP at the time, they made him cross train to weather (actually he had a couple choices at the time).
X
I could be wrong but I don't think deployability is a factor at all. There was nothing in my IFEB decision about deployability. Once found fit if your condition (like mine) makes you not world-wide deployable you will be C coded. Then they will reclass you into an AFSC that is suitable.
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This is one of the most maddening issues because the regulations are not uniformly applied.
DoD Instruction 1332.38 stated deployability is to be considered a factor but should not be the sole factor. The AF, and Department of the Navy (DoN)focused on this factor much more so than the Army. The Directive-Type Memo on deployability came out the begining of this year and said it could be a sole factor. As far as I saw, Army did not change their practice (not counting it that much) nor as far as I could tell did the AF/DoN (saying it could be a basis for unfitness, but not neccesarily finding so depending on the case).
The real problem, in my view, is that DoN particularly has found "fit," and then later administratively discharged for not being able to deploy. I think its illegal, but you would have to fight this.
DoD Instruction 1332.38 stated deployability is to be considered a factor but should not be the sole factor. The AF, and Department of the Navy (DoN)focused on this factor much more so than the Army. The Directive-Type Memo on deployability came out the begining of this year and said it could be a sole factor. As far as I saw, Army did not change their practice (not counting it that much) nor as far as I could tell did the AF/DoN (saying it could be a basis for unfitness, but not neccesarily finding so depending on the case).
The real problem, in my view, is that DoN particularly has found "fit," and then later administratively discharged for not being able to deploy. I think its illegal, but you would have to fight this.
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It sounds as though it would be a good idea for the commanders letter to have a statement like
This person can perform all required duties in his current AFSC & grade. However deplorability might be an issue.
This could hurt you if they lever it on deplorability. However could help your found fit & later they want to discharge you because of it.
What you think?
X
This person can perform all required duties in his current AFSC & grade. However deplorability might be an issue.
This could hurt you if they lever it on deplorability. However could help your found fit & later they want to discharge you because of it.
What you think?
X
DoDI 1332.38
E3.P3. ENCLOSURE 3 PART 3
STANDARDS FOR DETERMINING UNFITNESS DUE TO PHYSICAL DISABILITY OR MEDICAL DISQUALIFICATION
E3.P3.1. Uniformity of Standards.
The standards listed within this instruction for determining unfitness due to physical disability shall be strictly adhered to, unless exceptions are approved by the Under Secretary of Defense for Personnel and Readiness based upon the unique needs of the respective Military Department.
E3.P3.2. General Criteria for Making Unfitness Determinations
E3.P3.2.1. A Service member shall be considered unfit when the evidence establishes that the member, due to physical disability, is unable to reasonably perform the duties of his or her office, grade, rank, or rating (hereafter called duties) to include duties during a remaining period of Reserve obligation.
E3.P3.2.2. In making a determination of a member’s ability to so perform his/her duties, the following criteria may be included in the assessment:
E3.P3.2.2.1. The medical condition represents a decided medical risk to the health of the member or to the welfare of other members were the member to continue on active duty or in an Active Reserve status.
E3.P3.2.2.2. The medical condition imposes unreasonable requirements on the military to maintain or protect the member.
E3.P3.2.2.3. The Service member’s established duties during any remaining period of reserve obligation.
E3.P3.3. Relevant Evidence.
All relevant evidence will be considered in assessing Service member fitness, including the circumstances of referral. To reach a finding of unfit, the PEB must be satisfied that the information it has before it supports a finding of unfitness.
E3.P3.3.1. Referral Following Illness or Injury. When referral for physical disability evaluation immediately follows acute, grave illness or injury, the medical evaluation may stand alone, particularly if medical evidence establishes that continued service would be deleterious to the Service member’s health or is not in the best interests of the respective Service.
E3.P3.3.2. Referral For Chronic Impairment. When a Service member is referred for physical disability evaluation under circumstances other than as described in subsection E3.P3.3.1., above, evaluation of the member’s performance of duty by supervisors as indicated, for example, by letters, efficiency reports, credential reports, status of physician medical privileges, or personal testimony may provide better evidence than a clinical estimate by a physician of the Service member’s ability to perform his or her duties. Particularly in cases of chronic illness, these documents may be expected to reflect accurately a member’s capacity to perform.
E3.P3.3.3. Adequate Performance Until Referral. If the evidence establishes that the Service member adequately performed his or her duties until the time the Service member was referred for physical evaluation, the member may be considered fit for duty even though medical evidence indicates questionable physical ability to continue to perform duty.
E3.P3.3.4. Cause and Effect Relationship. Regardless of the presence of illness or injury, inadequate performance of duty, by itself, shall not be considered as evidence of unfitness due to physical disability unless it is established that there is a cause and effect relationship between the two factors.
E3.P3.4. Reasonable Performance of Duties
E3.P3.4.1. Considerations. Determining whether a member can reasonably perform his or her duties includes consideration of:
E3.P3.4.1.1. Common Military Tasks. The member, due to physical disability, is unable to reasonably perform the duties of his or her office, grade, rank, or rating (hereafter called duties) to include during a remaining period of Reserve obligation. For example, whether the member is routinely required to fire his or her weapon, perform field duty, or to wear load bearing equipment or protective gear.
E3.P3.4.1.2. Physical Fitness Test. Whether the member is medically prohibited from taking the respective Service's required physical fitness test. When an individual has been found fit by a PEB for a condition which prevents the member from taking the Service physical fitness test, the inability to take the physical fitness test shall not form the basis for an adverse personnel action against the member.
E3.P3.4.1.3. Deployability. When a Service member’s office, grade, rank or rating requires deployability, whether a member’s medical condition(s) prevents positioning the member individually or as part of a unit with or without prior notification to a location outside the Continental United States. Inability to perform the duties of his or her office, grade, rank, or rating in every geographic location and under every conceivable circumstance will not be the sole basis for a finding of unfitness. When deployability is used by a Service as a consideration to determine fitness, the standard must be applied uniformly to both the Active and Reserve components of that Service.
(Note: The rule above was modified by a DTM in DEC 2007. The DTM states that Services can now use deployability as the sole reason for finding a member unfit. Services are not required to find a person unfit if non deployable but they can if they desire.)
E3.P3.4.1.4. Special Qualifications. For members whose medical condition causes loss of qualification for specialized duties, whether the specialized duties comprise the member's current duty assignment; or the member has an alternate branch or specialty; or whether reclassification or reassignment is feasible.
E3.P3.4.2. General, Flag, and Medical Officers. An officer in pay grade 0-7 or higher or a medical officer in any grade shall not be determined unfit because of physical disability if the member can be expected to perform satisfactorily in an assignment appropriate to his or her grade, qualifications, and experience. Thus, the inability to perform specialized duties or the fact the member has a condition which is cause for referral to a PEB is not justification for a finding of unfitness.
E3.P3.4.3. Members on Permanent Limited Duty. A member previously determined unfit and continued in a permanent limited duty status or otherwise continued on active duty, will normally be found unfit at the expiration of his or her period of continuation. However, the member may be determined fit when the member's condition has healed or improved so that the member would be capable of performing his or her duties in other than a limited duty status.
E3.P3.4.4. Overall Effect. A member may be determined unfit as a result of the overall effect of two or more impairments even though each of them, standing alone, would not cause the member to be referred into the DES or be found unfit because of physical disability.
E3.P3.5. Presumption of Fitness
E3.P3.5.1. Application. Except for Service members previously determined unfit and continued in a permanent limited duty status, Service members who are pending retirement at the time they are referred for physical disability evaluation enter the DES under a rebuttable presumption that they are physically fit. The DES compensates disabilities when they cause or contribute to career termination. Continued performance of duty until a Service member is approved for length of service retirement creates a rebuttable presumption that a Service member’s medical conditions have not caused career termination.
E3.P3.5.2. Presumptive Period. Service members shall be considered to be pending retirement when the dictation of the member’s MEB occurs after any of the circumstances designated in paragraphs E3.P3.5.2.1. through E3.P3.5.2.4., below.
E3.P3.5.2.1. When a member’s request for voluntary retirement has been approved. Revocation of voluntary retirement orders for purposes of referral into the DES does not negate application of the presumption.
E3.P3.5.2.2. An officer has been approved for Selective Early Retirement.
E3.P3.5.2.3. An officer is within 12 months of mandatory retirement due to age or length of service.
E3.P3.5.2.4. An enlisted member is within 12 months of his or her retention control point (RCP) or expiration of active obligated service (EAOS) but will be eligible for retirement at his or her RCP/EAOS.
E3.P3.5.3. Overcoming the Presumption. The presumption of fitness rule shall be overcome when:
E3.P3.5.3.1. Within the presumptive period an acute, grave illness or injury occurs that would prevent the member from performing further duty if he or she were not retiring; or
E3.P3.5.3.2. Within the presumptive period a serious deterioration of a previously diagnosed condition, to include a chronic condition, occurs and the deterioration would preclude further duty if the member were not retiring; or
E3.P3.5.3.3. The condition for which the member is referred is a chronic condition and a preponderance of evidence establishes that the member was not performing duties befitting either his or her experience in the office, grade, rank, or rating before entering the presumptive period. When there has been no serious deterioration within the presumptive period, the ability to perform duty in the future shall not be a consideration.
E3.P3.6. Evidentiary Standards for Determining Unfitness Because of Physical
Disability
E3.P3.6.1. Factual Finding. A factual finding that a Service member is unfit because of physical disability depends on the evidence that is available to support that finding. The quality of evidence is usually more important than quantity. All relevant evidence must be weighted in relation to all known facts and circumstances which prompted referral for disability evaluation. Findings will be made on the basis of objective evidence in the record as distinguished from personal opinion, speculation, or conjecture. When the evidence is not clear concerning a Service member's fitness, an attempt will be made to resolve doubt on the basis of further objective investigation, observation, and evidence. Benefit of unresolved doubt shall be resolved in favor of the fitness of the Service member under the rebuttable presumption that the member desires to be found fit for duty.
E3.P3.6.2. Preponderance of Evidence. Findings about fitness or unfitness for Military Service shall be made on the basis of preponderance of the evidence. Thus, if a preponderance (that is, more than 50 percent) of the evidence indicates unfitness, a finding to that effect will be made. If, on the other hand, a preponderance of the evidence indicates fitness, the Service member may not be separated or retired by reason of physical disability.
E3.P3. ENCLOSURE 3 PART 3
STANDARDS FOR DETERMINING UNFITNESS DUE TO PHYSICAL DISABILITY OR MEDICAL DISQUALIFICATION
E3.P3.1. Uniformity of Standards.
The standards listed within this instruction for determining unfitness due to physical disability shall be strictly adhered to, unless exceptions are approved by the Under Secretary of Defense for Personnel and Readiness based upon the unique needs of the respective Military Department.
E3.P3.2. General Criteria for Making Unfitness Determinations
E3.P3.2.1. A Service member shall be considered unfit when the evidence establishes that the member, due to physical disability, is unable to reasonably perform the duties of his or her office, grade, rank, or rating (hereafter called duties) to include duties during a remaining period of Reserve obligation.
E3.P3.2.2. In making a determination of a member’s ability to so perform his/her duties, the following criteria may be included in the assessment:
E3.P3.2.2.1. The medical condition represents a decided medical risk to the health of the member or to the welfare of other members were the member to continue on active duty or in an Active Reserve status.
E3.P3.2.2.2. The medical condition imposes unreasonable requirements on the military to maintain or protect the member.
E3.P3.2.2.3. The Service member’s established duties during any remaining period of reserve obligation.
E3.P3.3. Relevant Evidence.
All relevant evidence will be considered in assessing Service member fitness, including the circumstances of referral. To reach a finding of unfit, the PEB must be satisfied that the information it has before it supports a finding of unfitness.
E3.P3.3.1. Referral Following Illness or Injury. When referral for physical disability evaluation immediately follows acute, grave illness or injury, the medical evaluation may stand alone, particularly if medical evidence establishes that continued service would be deleterious to the Service member’s health or is not in the best interests of the respective Service.
E3.P3.3.2. Referral For Chronic Impairment. When a Service member is referred for physical disability evaluation under circumstances other than as described in subsection E3.P3.3.1., above, evaluation of the member’s performance of duty by supervisors as indicated, for example, by letters, efficiency reports, credential reports, status of physician medical privileges, or personal testimony may provide better evidence than a clinical estimate by a physician of the Service member’s ability to perform his or her duties. Particularly in cases of chronic illness, these documents may be expected to reflect accurately a member’s capacity to perform.
E3.P3.3.3. Adequate Performance Until Referral. If the evidence establishes that the Service member adequately performed his or her duties until the time the Service member was referred for physical evaluation, the member may be considered fit for duty even though medical evidence indicates questionable physical ability to continue to perform duty.
E3.P3.3.4. Cause and Effect Relationship. Regardless of the presence of illness or injury, inadequate performance of duty, by itself, shall not be considered as evidence of unfitness due to physical disability unless it is established that there is a cause and effect relationship between the two factors.
E3.P3.4. Reasonable Performance of Duties
E3.P3.4.1. Considerations. Determining whether a member can reasonably perform his or her duties includes consideration of:
E3.P3.4.1.1. Common Military Tasks. The member, due to physical disability, is unable to reasonably perform the duties of his or her office, grade, rank, or rating (hereafter called duties) to include during a remaining period of Reserve obligation. For example, whether the member is routinely required to fire his or her weapon, perform field duty, or to wear load bearing equipment or protective gear.
E3.P3.4.1.2. Physical Fitness Test. Whether the member is medically prohibited from taking the respective Service's required physical fitness test. When an individual has been found fit by a PEB for a condition which prevents the member from taking the Service physical fitness test, the inability to take the physical fitness test shall not form the basis for an adverse personnel action against the member.
E3.P3.4.1.3. Deployability. When a Service member’s office, grade, rank or rating requires deployability, whether a member’s medical condition(s) prevents positioning the member individually or as part of a unit with or without prior notification to a location outside the Continental United States. Inability to perform the duties of his or her office, grade, rank, or rating in every geographic location and under every conceivable circumstance will not be the sole basis for a finding of unfitness. When deployability is used by a Service as a consideration to determine fitness, the standard must be applied uniformly to both the Active and Reserve components of that Service.
(Note: The rule above was modified by a DTM in DEC 2007. The DTM states that Services can now use deployability as the sole reason for finding a member unfit. Services are not required to find a person unfit if non deployable but they can if they desire.)
E3.P3.4.1.4. Special Qualifications. For members whose medical condition causes loss of qualification for specialized duties, whether the specialized duties comprise the member's current duty assignment; or the member has an alternate branch or specialty; or whether reclassification or reassignment is feasible.
E3.P3.4.2. General, Flag, and Medical Officers. An officer in pay grade 0-7 or higher or a medical officer in any grade shall not be determined unfit because of physical disability if the member can be expected to perform satisfactorily in an assignment appropriate to his or her grade, qualifications, and experience. Thus, the inability to perform specialized duties or the fact the member has a condition which is cause for referral to a PEB is not justification for a finding of unfitness.
E3.P3.4.3. Members on Permanent Limited Duty. A member previously determined unfit and continued in a permanent limited duty status or otherwise continued on active duty, will normally be found unfit at the expiration of his or her period of continuation. However, the member may be determined fit when the member's condition has healed or improved so that the member would be capable of performing his or her duties in other than a limited duty status.
E3.P3.4.4. Overall Effect. A member may be determined unfit as a result of the overall effect of two or more impairments even though each of them, standing alone, would not cause the member to be referred into the DES or be found unfit because of physical disability.
E3.P3.5. Presumption of Fitness
E3.P3.5.1. Application. Except for Service members previously determined unfit and continued in a permanent limited duty status, Service members who are pending retirement at the time they are referred for physical disability evaluation enter the DES under a rebuttable presumption that they are physically fit. The DES compensates disabilities when they cause or contribute to career termination. Continued performance of duty until a Service member is approved for length of service retirement creates a rebuttable presumption that a Service member’s medical conditions have not caused career termination.
E3.P3.5.2. Presumptive Period. Service members shall be considered to be pending retirement when the dictation of the member’s MEB occurs after any of the circumstances designated in paragraphs E3.P3.5.2.1. through E3.P3.5.2.4., below.
E3.P3.5.2.1. When a member’s request for voluntary retirement has been approved. Revocation of voluntary retirement orders for purposes of referral into the DES does not negate application of the presumption.
E3.P3.5.2.2. An officer has been approved for Selective Early Retirement.
E3.P3.5.2.3. An officer is within 12 months of mandatory retirement due to age or length of service.
E3.P3.5.2.4. An enlisted member is within 12 months of his or her retention control point (RCP) or expiration of active obligated service (EAOS) but will be eligible for retirement at his or her RCP/EAOS.
E3.P3.5.3. Overcoming the Presumption. The presumption of fitness rule shall be overcome when:
E3.P3.5.3.1. Within the presumptive period an acute, grave illness or injury occurs that would prevent the member from performing further duty if he or she were not retiring; or
E3.P3.5.3.2. Within the presumptive period a serious deterioration of a previously diagnosed condition, to include a chronic condition, occurs and the deterioration would preclude further duty if the member were not retiring; or
E3.P3.5.3.3. The condition for which the member is referred is a chronic condition and a preponderance of evidence establishes that the member was not performing duties befitting either his or her experience in the office, grade, rank, or rating before entering the presumptive period. When there has been no serious deterioration within the presumptive period, the ability to perform duty in the future shall not be a consideration.
E3.P3.6. Evidentiary Standards for Determining Unfitness Because of Physical
Disability
E3.P3.6.1. Factual Finding. A factual finding that a Service member is unfit because of physical disability depends on the evidence that is available to support that finding. The quality of evidence is usually more important than quantity. All relevant evidence must be weighted in relation to all known facts and circumstances which prompted referral for disability evaluation. Findings will be made on the basis of objective evidence in the record as distinguished from personal opinion, speculation, or conjecture. When the evidence is not clear concerning a Service member's fitness, an attempt will be made to resolve doubt on the basis of further objective investigation, observation, and evidence. Benefit of unresolved doubt shall be resolved in favor of the fitness of the Service member under the rebuttable presumption that the member desires to be found fit for duty.
E3.P3.6.2. Preponderance of Evidence. Findings about fitness or unfitness for Military Service shall be made on the basis of preponderance of the evidence. Thus, if a preponderance (that is, more than 50 percent) of the evidence indicates unfitness, a finding to that effect will be made. If, on the other hand, a preponderance of the evidence indicates fitness, the Service member may not be separated or retired by reason of physical disability.
I am a new member to this forum with this being my first post. I have reached out here as I am uncertain about which way to turn now.
I was injured in an auto accident in May of 2004 while on reserve duty. I have been found fit for duty and unfit for duty due to physical disability only to have it revoked and then found fit again. I have been waived for every PRT cycle since injured and continue to go through a never ending medical evaluation process. I was refered to the VA to continue medical attention once removed from the TriCare roles who found me as 40% disabled (20% Cervical disk disease with sensory neuropathy, upper extremeties and 20% Lumbar Disc disease which includes thoracic spondylosis). I am currently attached to a reserve unit from NAF WDC, Andrews AFB and have more than enough years to retire but have had my career impacted by the injuries I sustained.
The question is how do I get through this continuing medical evaluation process and have the Navy recognize the true extent of my injuries and it's impact on my life and career? I feel lost in the system and can't seem to get a straight answer from anyone who should know what happens next.
I was injured in an auto accident in May of 2004 while on reserve duty. I have been found fit for duty and unfit for duty due to physical disability only to have it revoked and then found fit again. I have been waived for every PRT cycle since injured and continue to go through a never ending medical evaluation process. I was refered to the VA to continue medical attention once removed from the TriCare roles who found me as 40% disabled (20% Cervical disk disease with sensory neuropathy, upper extremeties and 20% Lumbar Disc disease which includes thoracic spondylosis). I am currently attached to a reserve unit from NAF WDC, Andrews AFB and have more than enough years to retire but have had my career impacted by the injuries I sustained.
The question is how do I get through this continuing medical evaluation process and have the Navy recognize the true extent of my injuries and it's impact on my life and career? I feel lost in the system and can't seem to get a straight answer from anyone who should know what happens next.
Jason Perry
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Since you have been referred to PEB and found fit, it requires a worsening of your condition to go back to an MEB and PEB. Has your condition changed since your MEB? How do your injuries impact your performance of duty?
One thing I should mention, if you request retirement or are processed for retirement, any PEB will be done with the presumption that you are fit for duty.
Bottom line, in order to get rated, you need to go through another PEB. A doctor should refer you to MEB if you have a worsening of condition. Your annual medical certification may trigger a MEB, too.
One thing I should mention, if you request retirement or are processed for retirement, any PEB will be done with the presumption that you are fit for duty.
Bottom line, in order to get rated, you need to go through another PEB. A doctor should refer you to MEB if you have a worsening of condition. Your annual medical certification may trigger a MEB, too.
After being found fit in June of 2005 I was then placed in another MED/PEB cycle after not being able to train for or participate in PRT cycle due to the injuries I had sustained. Additional amplifying medical information and the determination by the VA were supplied to BUMED as part of this newer evaluation process. On Feb 06, 2006 I received notification from the Chief, Bureau of Medicine and Surgery that assigned me a Physical Risk "4" and directed NPC to resubmit with a current ortho examine for postramatic cervical radiculopathy and lumbar discopathy. They came back with a determination of Physical Risk "5" Not Physically Qualified (NPQ) for retention in the Navy Reserves and seperation due to a physical disability on June 09, 2006.
While were submitting the paper work to have my LOD status re-instatement and be processed out of the Navy under that program my status was reverted back to the orginal determination of Fit on June 13, 2006. The paper work for me to have LOD reinstated, was processed until June 15, 2006 and approved on June 19, 2006.
What burns me up is the fact the determination of fit stated I was required another physical evaluation a year later to see if my condition had changed which was done and came back with the determination of NPQ due to Physical disability. Then they overturned it when I wanted to be processed under the LOD program since my physical disability was due to injury sustained in an LOD status.
I have been battling them every since. I am in the begining of my 3rd 6 month extension of service for reason of medical evaluation.
Bascially I believe they came to the correct decision in June of 2006 that they should have come to in June of 2005 that I have a physical disability that makes me undeployable and unable to meet the qualifications to remain in the Navy. The VA has rated this at 40% and is evaluating me for another connected issue.
While were submitting the paper work to have my LOD status re-instatement and be processed out of the Navy under that program my status was reverted back to the orginal determination of Fit on June 13, 2006. The paper work for me to have LOD reinstated, was processed until June 15, 2006 and approved on June 19, 2006.
What burns me up is the fact the determination of fit stated I was required another physical evaluation a year later to see if my condition had changed which was done and came back with the determination of NPQ due to Physical disability. Then they overturned it when I wanted to be processed under the LOD program since my physical disability was due to injury sustained in an LOD status.
I have been battling them every since. I am in the begining of my 3rd 6 month extension of service for reason of medical evaluation.
Bascially I believe they came to the correct decision in June of 2006 that they should have come to in June of 2005 that I have a physical disability that makes me undeployable and unable to meet the qualifications to remain in the Navy. The VA has rated this at 40% and is evaluating me for another connected issue.