I went through something similar i requested a FPEB to talk about my LOD issue i was already found unfit with all the medical records i had the Board determine that i had enough evidence to get my LOD approved so they submitted a memo with my evidence to HRC and a week later HRC approved my LOD So all i can say is keep fighting until you win.
I had a conversation with my ODC Lawyer a couple of days ago. He keeps telling me that I cannot argue what they have determined to be Non Duty Related. DODI 1332.18 states that I am entitle to argue that. From DODI 1332.18:
(4) Issues.
At the FPEB, the Service member will be entitled to address issues pertaining to their
fitness, the percentage of disability, degree or stability of disability, administrative
determinations,
a determination that their injury or disease was non-duty related, or that their
injury or disease was combat-related or took place in a combat-zone.
(g) Access all records and evidence the PEB receives before, during, and after the
formal hearing, unless such records are exempt from disclosure by law, which were relied upon
by the FPEB in making their recommendation.
(2) When the PEB has reasonable cause to believe an LOD finding appears to be
contrary to the evidence,
disability evaluation will be suspended for a review of the LOD
determination in accordance with the regulations of the respective Military Department. The
PEB will forward the case to the final LOD reviewing authority designated by the Secretary of
the Military Department concerned with a memorandum documenting the reasons for
questioning the LOD finding.
(2) The Secretaries of the Military Departments may overcome this presumption if clear
and unmistakable evidence demonstrates that both the disability existed before the Service
member’s entrance on their current period of active duty and the disability was not aggravated by
their current period of military service.
Absent such clear and unmistakable evidence, the
Secretary of the Military Department concerned will conclude that the disability was incurred or
aggravated during their current period of military service.
(3) The Secretary of the Military Department concerned must base a finding that the
Service member’s condition was not incurred in, or aggravated by, their current period of
military service
on objective evidence in the record, as distinguished from personal opinion,
speculation, or conjecture. When the evidence is unclear concerning whether the condition
existed before their current period of military service, or if the evidence is equivocal, and the
presumption of sound condition at the Service member’s entry to the current period of military
service has not been rebutted, the Secretary of the Military Department concerned will find the
Service member’s condition was incurred in or aggravated by military service.
(4) Hereditary or genetic disease will be evaluated to determine whether clear and unmistakable evidence demonstrates that both the disability existed before the Service member’s entrance on active duty and the disability was not aggravated by their current period of military service.
However, even if the disability is determined to have been incurred before entry on their current period of active duty, any aggravation of that disease incurred during the Service member’s current period of active duty beyond that determined to be due to natural progression, will be determined to be service-aggravated.
c. Presumption of Incurrence or Aggravation in the LOD for Members on Continuous Orders to Active Duty Specifying a Period of More Than 30 Days.
(1)
The Secretaries of the Military Departments will presume that diseases or injuries incurred by Service members on continuous orders to active duty, specifying a period of more than 30 days, were incurred or aggravated in the LOD unless the disease or injury was noted at time of entry into service. The Secretaries of the Military Departments may overcome the presumption that a disease or injury was incurred or aggravated in the LOD only when clear and unmistakable evidence indicates both that the disease or injury existed before their current period of military service and that the disease or injury was not aggravated by their current period of military service.
(2) Pursuant to Sections 1206a and 1207a of Title 10, U.S.C, a preexisting condition will be deemed to have been incurred while entitled to basic pay and will be considered for purposes of determining whether the disability was incurred in the LOD when:
(a) The Service member was ordered to active duty for more than 30 days (other than for training pursuant to Section 10148(a) of Title 10, U.S.C.) when the disease or injury was determined to be unfitting by the PEB;
(b) The Service member was not an RC Service member released within 30 days of their orders to active duty, in accordance with Section 1206a of Title 10, U.S.C., due to the identification of a preexisting condition not aggravated by the current call to duty;
(c) The Service member will have a career total of at least 8 years of active service and be in an active duty status at the time of separation; or
(d) The disability was not the result of intentional misconduct or willful neglect or was incurred during a period of unauthorized absence.
e. Prior Service Condition.
Any medical condition incurred or aggravated during one period of active service or
authorized training in any of the Military Services that recurs, is aggravated, or otherwise causes
the Service member to be unfit,
should be considered incurred in the LOD, provided the origin of
such condition or its current state is not due to the Service member’s misconduct or willful
negligence, or progressed to unfitness as the result of intervening events when the Service
member was not in a duty status.
My Lawyer keeps telling me that the FPEB is for determination of fitness only, and the AF has already determined that my NILOD conditions are unfitting. He is now deferring the FPEB and going straight to a SAF appeal. He will not argue violations of law and policy, instead he wants me through my civilian doctors to provide evidence that the conditions were ILOD. This does not sit well with me. In the battle of evidence I will never win. These boards and appeals do not follow law and policy. Even if I provided insurmountable evidence they do not even have to acknowledge it. My real issue is that my conditions are presumed to be ILOD per USC, DODI, and DAFI. The DAF has the burden to overcome this presumption only through clear and unmistakable evidence. They failed to do this. They are also mandated with furnishing me with their clear and unmistakable evidence, which they failed to do. I was in a duty status when the injury/conditions presented. I have 13 years of Special Warfare physicals that show these were not preexisting. Even if they were preexisting USC and DODI state they must rule in my favor as ILOD. I guess I just have to get through this process so that I can file a BCMR.
As you can see above the DODI is clear on the matter, but the decision makers apparently do not have to abide by it. I'll keep fighting though. Sooner or later someone will listen to me, and I am confident that it will grab traction.
