Hello @BLW
You mentioned:
1. “Your post scares the crap out of me. My PEB findings came back on May 10, 2022 with an unfit finding with 10% DoD disability so it said I was to be separated with severance. This was 10 days before I hit my 20 year active duty mark.”
AND
2. “PLEBO and attorneys and everyone else are saying the Navy won't separate me because I'm over 20 years active duty now. Why do I get the feeling they just want me to accept the findings and get out of their hair? I'm so confused about this whole thing and I'm going to freak the you-know-what out if I end up getting a message that I'm to be separated with severance.”
Full disclosure: I was not in the Navy.
From Jason Perry, May 2022
*quotation start*. One point- the regulations of the military branches do discuss this issue (I am not going to do a deep dive now and provide specific cites to each service's regulations). However, this option is a requirement of Federal Law- 10 U.S. Code § 1209 - Transfer to inactive status list instead of separation.
This issue of electing retirement for a length of service retirement vice a separation finding during the LDES or IDES process really only arises for reservists because when an active duty member has 20 years or more, the PEBs "automatically" decide the case as a disability retirement with entitlement to retired pay calculated on the length of service whenever such a member has any condition that is determined to be unfitting.
It is obviously better for the reservist member who is found to be unfit with a disability rated less than 30% to make their election under 10 U.S.C. Section 1209 while still in service. (Why? Because doing so negates the issue of challenging the default election and makes it "cleaner").
I have dealt with this issue recently in an Air Force case and the service reached out to the member to ensure that they made an election. I have seen this happen in other branches, too.
However, if the PEBLO or the PEB did not ask the member about their election (which, I usually see), then I still think that the member who wants this outcome (reserve retirement over separation pay), then they will likely get it on request to the BCMR.
*end of quotation*
Recommend you speak with your attorneys again and show them the cited Navy directive. Then, ask them to contact Navy personnel for their interpretation AND at least one case where a member lost their earned retirement under the circumstances described here.
Please continue to report developments in your case as they will be helpful to other personnel.
Good luck,
Ron
cc: @Jason Perry @Provis @chaplaincharlie @Guardguy11 @tony292
Your comments in this matter would be appreciated. RG
You mentioned:
1. “Your post scares the crap out of me. My PEB findings came back on May 10, 2022 with an unfit finding with 10% DoD disability so it said I was to be separated with severance. This was 10 days before I hit my 20 year active duty mark.”
AND
2. “PLEBO and attorneys and everyone else are saying the Navy won't separate me because I'm over 20 years active duty now. Why do I get the feeling they just want me to accept the findings and get out of their hair? I'm so confused about this whole thing and I'm going to freak the you-know-what out if I end up getting a message that I'm to be separated with severance.”
Full disclosure: I was not in the Navy.
From Jason Perry, May 2022
*quotation start*. One point- the regulations of the military branches do discuss this issue (I am not going to do a deep dive now and provide specific cites to each service's regulations). However, this option is a requirement of Federal Law- 10 U.S. Code § 1209 - Transfer to inactive status list instead of separation.
This issue of electing retirement for a length of service retirement vice a separation finding during the LDES or IDES process really only arises for reservists because when an active duty member has 20 years or more, the PEBs "automatically" decide the case as a disability retirement with entitlement to retired pay calculated on the length of service whenever such a member has any condition that is determined to be unfitting.
It is obviously better for the reservist member who is found to be unfit with a disability rated less than 30% to make their election under 10 U.S.C. Section 1209 while still in service. (Why? Because doing so negates the issue of challenging the default election and makes it "cleaner").
I have dealt with this issue recently in an Air Force case and the service reached out to the member to ensure that they made an election. I have seen this happen in other branches, too.
However, if the PEBLO or the PEB did not ask the member about their election (which, I usually see), then I still think that the member who wants this outcome (reserve retirement over separation pay), then they will likely get it on request to the BCMR.
*end of quotation*
Recommend you speak with your attorneys again and show them the cited Navy directive. Then, ask them to contact Navy personnel for their interpretation AND at least one case where a member lost their earned retirement under the circumstances described here.
Please continue to report developments in your case as they will be helpful to other personnel.
Good luck,
Ron
cc: @Jason Perry @Provis @chaplaincharlie @Guardguy11 @tony292
Your comments in this matter would be appreciated. RG
Last edited:
