Okay here we go I have been the men for about 6 weeks and I am about to take a tape test That I will fail my 1st sgt say he is going to kick me out on chapter 18 (over weight ) or he is going to Reduce me e-4 to e- 3 can he legally do this and where do I find the reg and I have 2 bulge disc in my back and general anxiety due to my back I've been in the army over 6 years and 1 deployment thanks
Help! reduced rank while in meb for over weight?
- Thread starter claytonb
- Start date
http://www.apd.army.mil/pdffiles/r600_9.pdf is the Army Weight Control Regulations. You can't be admin sep'd while in a PEB status for weight control.
1–9. Disposition through medical channels
a. Disposition through medical channels takes precedence over administrative separation processing.
b. When the medical treatment facility (MTF) commander or attending medical officer determines that a Soldier being processed for administrative separation under chapters 7 (para 7–4) or 12, of this regulation, does not meet the medical fitness standards for retention (AR 40–501, chap 3), he or she will refer the Soldier to a medical evaluation board (MEB) in accordance with AR 40–400, chapter 7. The administrative separation proceedings will continue but final action by the separation authority will not be taken, pending the results of MEB.
c. If the MEB findings indicate referral of the case to a physical evaluation board (PEB) is warranted for disability processing under the provisions of AR 635–40, the MTF commander will furnish copies of the approved MEB proceedings to the Soldier’s General Court Martial Convening Authority (GCMCA) and unit commander. The GCMCA may direct, in writing, that the Soldier be processed through the physical disability system when action under the Uniform Code of Military Justice (UCMJ) has not been initiated, and it has been determined that—
AR 135–178 • 13 March 20073(1) The Soldier’s medical condition is the direct or substantial contributing cause of the conduct that led to the recommendation for administrative elimination or,
(2) Other circumstances of the individual case warrant disability processing instead of further processing for administrative separation.
d. The authority of the GCMCA to determine whether a case is to be processed through medical disability channels, or under administrative separation provisions, will not be delegated.
e. The GCMCA’s signed decision to process a Soldier through the physical disability system will be transmitted to the MTF commander as authority for referral of the case to a PEB. Copies of the GCMCA’s decision will be furnished to the unit commander and will be included in the administrative separation proceedings. The unit commander will suspend processing of the administrative separation action pending the PEB. If the Soldier is found physically fit, the administrative separation action will be resumed. If the Soldier is found physically unfit, the administrative separation action will be abated.
a. Disposition through medical channels takes precedence over administrative separation processing.
b. When the medical treatment facility (MTF) commander or attending medical officer determines that a Soldier being processed for administrative separation under chapters 7 (para 7–4) or 12, of this regulation, does not meet the medical fitness standards for retention (AR 40–501, chap 3), he or she will refer the Soldier to a medical evaluation board (MEB) in accordance with AR 40–400, chapter 7. The administrative separation proceedings will continue but final action by the separation authority will not be taken, pending the results of MEB.
c. If the MEB findings indicate referral of the case to a physical evaluation board (PEB) is warranted for disability processing under the provisions of AR 635–40, the MTF commander will furnish copies of the approved MEB proceedings to the Soldier’s General Court Martial Convening Authority (GCMCA) and unit commander. The GCMCA may direct, in writing, that the Soldier be processed through the physical disability system when action under the Uniform Code of Military Justice (UCMJ) has not been initiated, and it has been determined that—
AR 135–178 • 13 March 20073(1) The Soldier’s medical condition is the direct or substantial contributing cause of the conduct that led to the recommendation for administrative elimination or,
(2) Other circumstances of the individual case warrant disability processing instead of further processing for administrative separation.
d. The authority of the GCMCA to determine whether a case is to be processed through medical disability channels, or under administrative separation provisions, will not be delegated.
e. The GCMCA’s signed decision to process a Soldier through the physical disability system will be transmitted to the MTF commander as authority for referral of the case to a PEB. Copies of the GCMCA’s decision will be furnished to the unit commander and will be included in the administrative separation proceedings. The unit commander will suspend processing of the administrative separation action pending the PEB. If the Soldier is found physically fit, the administrative separation action will be resumed. If the Soldier is found physically unfit, the administrative separation action will be abated.
815. ARTICLE 15. COMMANDING OFFICER’S NON-JUDICIAL PUNISHMENT
03 Non-Judicial Punishment
815. 15. Commanding Officer’s non-judicial punishment
(a) Under such regulations as the President may prescribe, and under such additional regulations as may be prescribed by the Secretary concerned, limitations may be placed on the powers granted by this article with respect to the kind and amount of punishment authorized, the categories of commanding officers and warrant officers exercising command authorized to exercise those powers, the applicability of this article to an accused who demands trial by court-martial, and the kinds of courts-martial to which the case may be referred upon such a demand. However, except in the case of a member attached to or embarked in a vessel, punishment may not be imposed upon any member of the armed forces under this article if the member has, before the imposition of such punishment, demanded trial by court-martial in lieu of such punishment. Under similar regulations, rules may be prescribed with respect to the suspension of punishments authorized by regulations of the Secretary concerned, a commanding officer exercising general court-martial jurisdiction or an officer of general or flag rank in command may delegate his powers under this article to a principal assistant.
03 Non-Judicial Punishment
815. 15. Commanding Officer’s non-judicial punishment
(a) Under such regulations as the President may prescribe, and under such additional regulations as may be prescribed by the Secretary concerned, limitations may be placed on the powers granted by this article with respect to the kind and amount of punishment authorized, the categories of commanding officers and warrant officers exercising command authorized to exercise those powers, the applicability of this article to an accused who demands trial by court-martial, and the kinds of courts-martial to which the case may be referred upon such a demand. However, except in the case of a member attached to or embarked in a vessel, punishment may not be imposed upon any member of the armed forces under this article if the member has, before the imposition of such punishment, demanded trial by court-martial in lieu of such punishment. Under similar regulations, rules may be prescribed with respect to the suspension of punishments authorized by regulations of the Secretary concerned, a commanding officer exercising general court-martial jurisdiction or an officer of general or flag rank in command may delegate his powers under this article to a principal assistant.
Not sure with the Army - but I am currently undergoing the same thing with the Air Force. I was demoted down from E-5 to E-4 before surgery and the MEB process had been started. Now they are demoting me again from E-4 to E-3 based on PT failure - (waist measurement only). I had a meeting today in person with my CC and our Lawyers to discuss this current demotion action against me - and his decision is pending. So we'll see, but unfortunately while undergoing an MEB/PEB process they can still dual action the case, meaning they can process you for separation, but it get's paused at a certain point in the system until the PEB ruling comes down. From there they have the options of going with what the PEB recommends and medically retiring/separating you or if found fit, then the Admin Sep. process takes over and they discharge. The other unfortunate situation is that you are still required to meet all standards outline in the rules and regs for your particular service and DoD. Therefore, you can be seen as breaking standards even though you're most likely going to be found unfit for continued military service based on your particular injury. They wont apologize for this nor will you necessarily get your record cleared of this due to the findings. (Least with the current command) For that you would need to contact the BCMR and have your record cleared that way. I'm waiting till I have a decision on my case before I contact the AFBCMR so that I have all the findings to use as my appeal. I hope everything works out for your and sorry for the rough times you're going through right now.
Klam
ps. if you need to chat or have any questions don't hesitate to PM me!
Klam
ps. if you need to chat or have any questions don't hesitate to PM me!
Thanks Klam. Spot on with your assessment here. You mentioned in your post that you were demoted previously and now they are threatening to do it again. I assume you took NJP first time around in lieu of courts-martial; they possibly confused or scared you into it? Also, now new case is pending? Pending because they know you sought legal counsel and it's in there best interest to stop harassing you? Thanks for breaking this down nicely. One thing to add is when you are separated due to medical reasons your previous rank may be re-instated.
I don't see anything in 600-9 that prohibits processing someone being considered for an MEB for separation due to weight control failure, unless there is a medical condition the person can't lose weight. And that doesn't mean can't do PT. Ethically it would be a hard call. If it were me, if a soldier was a bit overweight I wouldn't push the issue and let the MEB/PEB go to conclusion. But if it is blatant, I would have no choice but to take separation action.
The original demotion was not the result of an Article 15 - the Air Force has AFI's regarding how to promote and demote therefore you can be demoted in lieu of Art.15 type punishment so I suppose yes it would be NJP. May 2011 My Commander forces the recommendation to his boss usually Wing Commander but in my case I work for a numbered Air Force so it went to him. So from Col to 2 star, said 2 star works this as the deligated authority from the 3 star. When 1st demotion was processed, my appeal for the demotion action went to my CC who decided to still punish me, then the entire package went to the 2 star. Upon the 2 stars decision, I am afforded another appeal process to his decision, which can be to uphold my CC's choice, make it stricter ie more rank reduction, or not agree and allow me to stay at my current rank. He chose to agree with my CC and demote me effective immediately. At that time, I appealed the decision, because more than 1 1/2 months (July 2011)had passed since the original document was filed, and my spinal injury had been diagnosed with surgeon consult pending(no surgery date set yet - 29 August 2011) My appeal was denied by the 3 star - thru the 2 star. Upon receipt of that I can request my stripe be given back to me on the basis of new evidence or in the case of PT, I pass and continue to show passing progress within a 90 day period. I was not informed that the higher level had denied my appeal until November of 2011 ie. to much time had passed therefore i was not within my rights to ask for my stripe back according to my ADC Counsel.
Now flash forward to April of this year, and still working 4 hr duty limited condition and the MEB/PEB process is still ongoing since officially mailed date of 30 Jan 2012 for my MEB/PEB packet. Another demotion action against me for again failing to meet fitness standards and having been given more time than most to recouperate I am still showing no signs of progressing (waist only measurement). My surgeon and physciatrist whom both have me on medications, have both written letters on my behalf stating that the medications being taken, especially due to inactivity will result in weight gain due to my medical condition. Due to scheduling conflicts with my ADC counsel and CC being on leave/TDY I was never afforded the opportunity to discuss this with my CC, as I had requested an informal hearing, as it was an option on the demotion action paperwork.
So yesterday, this meeting finally took place. I am the first Airman my CC, Shirt, ADC and CC's Counsel have ever had request this so they had no idea now this was supposed to be conducted. THEY agreed on the following ROE's:
It was not to be a question and answer session, I was to refrain from asking any direct questions to the commander, I would start by standing at attention and report in, he would then make a statement to which was "you've requested this informal hearing and i've granted it, please refrain from asking any direct questions, and I understand you've prepared a statement", CC put me at ease and I read my statement which contained 2 questions (LOL), my ADC counsel then added to the discussion on the merits that "I have an Admin Seperation package already being worked and would have been removed from the USAF had it not been for the MEB process and based on all the evidence, I will be atleast medically seperated with unfit findings, or the CC will then next have to think about how far do we go from here - as what is your recourse for his next test at the end of May? Do we move him back into the dorms and take MORE $$ away and keep busting him down because OUR processes aren't moving at the speed in which we would like? There is no right answer but he as the CC has the unique position of not having to do this, as the AFI does NOT require he make this determination, the LOR is understandable (I SUPPOSE) to show it's not going unpunished, but the other punishment is not necessary as it will not gain improvment from me. Essentially SrA Snuffy is here as a form of slavery we wont let him leave and he cant leave on his own behalf so we're just going to continue to punish him. I dont feel it's right." Upon the end of my counsel's turn, the commander asked if I would like to add anything else, I stated I would and gave him current CT Scan images of the hardware that's currently installed in my spine (*Chief said TAKE THOSE WITH YOU AND GIVE EM TO CC) and that was all. Signed my statement I read, saluted and was dismissed along with my ADC.
Shirt came out about 5 minutes later and said he actually thought it went well, the CC took notes the entire time, and that for a rough draft my statement was very eloquently stated, and he felt the CC may actually have been impressed. BUT Not expecting a change on my end, as if my CC was going to do anything he wouldn't have let it get this far in my opinion, now by changing he looks like he made a bad/incorrect decision that may give me grounds to counter any or previous decisions he's made with regard to my case or others to use. So I expect this to roll on was previously done with the first demotion action. I'm being optimistic that with this the current situation is at a stand still atleast until he makes his decission of which I will request a personal hearing with the NEW 2 and 3 Stars if necessary and fight the same fight.
Sorry for the long winded reply - As for the previous rank may be re-instated, from all i've been able to find, this is up to the SECAF or SAF for final resolution, and it's based upon time/effectiveness in higher grade. As my previous rank was E-5 with 2 PT failures, and referall EPR's (2) this doesn't lend to being well served in that rank, may be more difficult to get that rank back or cleared thru AFBCMR - but I am going to def. attempt to get that decision overturned or those EPR's and Fitness Assessments thrown out of my offical records.
Keep staying positive!!
Klam
Not sure about 600-9 but being considered for an MEB and actually having the MEB initiated are two seperate things. I'm not sure on OP's status. There needs to be more clarification on the matter, as he doesn't state whether an MEB/PEB has been started or not. The documents are offical forms and once an MEB recommendation has been made any Admin Sep. process would not be allowed to go all the way through to completion until the MEB/PEB has ruled. *(MEB is local base or other governing body for medical needs of individual. PEB is once decision has been made local it goes further up the chain to this entity. and becomes split with VA decisions coming into play)
Klamsnacks
I was medically discharged in 2006. Before my medical issues came about, I failed more than a few PT tests. Once the officer at the hospital recommended a MEB, the admin separation paused.
They can still push for weight control assignment or admin separation as a result of weight control failure, but the admin sep is not allowed to go through to completion without MEB/PEB making its decision. 600-9 doesn't contain any language preventing admin sep as a result of weight control, etc. However, AR 135-178 states that medical channels take precedence over admin sep. I agree with you in regards to a SM blatantly putting on weight or not making an attempt when able. In that case the command might be able to find another avenue to push an admin separation, but MEB/PEB takes priority over non-punitive.
AR 635-200, paragraph 1–33. Disposition through medical channels
a.
Except in separation actions under chapter 10 and as provided in para 1–33b, disposition through medical
channels takes precedence over administrative separation processing.
a.
Except in separation actions under chapter 10 and as provided in para 1–33b, disposition through medical
channels takes precedence over administrative separation processing.
If you have been selected for promotion, you will be promoted in conjunction with your retirement.
E2 - E4 advancements are "automatic" meaning they occur unless the commander specifically denies a soldier... That being said if you are in a PROMOTABLE status for E2 - E4, yes, you will be promoted upon retirement. E5 and above is different. You must have both made the list and been selected in order to be promoted at retirement.
In relation to reduction or separation for weight control or PT, if there is a valid and documented medical condition, a profile should have been issued to prevent adverse action on PT failure, and the medical condition is supposed to be evaluated and a determination made regarding the impact on weight. As said above, medical issues take priority over administrative ones.
With that being said, if a medical condition makes you unable to conduct PT, it is your responsibility as a soldier to maintain a healthy diet to limit weight gain. I went down this road when I was in the WTB at Fort Bragg. I was on a profile which did not allow me to do PT... I couldn't even perform any duties outside. Because of this I gained 50 lbs in 8 months because I failed to adjust my diet. I was not threatened with adverse action but I was counseled on my responsibility to monitor my caloric intake to compensate for my lack of PT.
In relation to reduction or separation for weight control or PT, if there is a valid and documented medical condition, a profile should have been issued to prevent adverse action on PT failure, and the medical condition is supposed to be evaluated and a determination made regarding the impact on weight. As said above, medical issues take priority over administrative ones.
With that being said, if a medical condition makes you unable to conduct PT, it is your responsibility as a soldier to maintain a healthy diet to limit weight gain. I went down this road when I was in the WTB at Fort Bragg. I was on a profile which did not allow me to do PT... I couldn't even perform any duties outside. Because of this I gained 50 lbs in 8 months because I failed to adjust my diet. I was not threatened with adverse action but I was counseled on my responsibility to monitor my caloric intake to compensate for my lack of PT.