Medical continuation orders and possible falsification of LOD

Y

YosemiteSam65

PEB Forum Regular Member

I’m an IMA assigned to an active duty unit and while I was on a 227 day active duty tour I was diagnosed with Obstructive Sleep Apnea (OSA) and Diabetes Mellitus (Type 2). On the OSA I had a sleep study done which confirmed the condition. I had a second sleep study on the last day of when my tour ended which confirmed the need for the CPAP device. My understanding this condition renders me unfit and eligible for DES processing. The Type 2 was also diagnosed and further evaluation was deemed necessary. This condition is also considered incompatable with military service and should be evaluated by a MEB.

My scheduled IDT’s and AT were cancelled by AFRC and I had an approved CMAS authorization for a follow along tour which was canceled by HQ/AFRC. I received an email from AFRC informing me that I had a 4T profile and that I was ineligible for pay and points, but AFRC/SGP had waiver authority for 4 T conditions. The waiver stipulated IDT’ and Annual Tour only and that no MPA (active duty) days could be done while on the waiver.

I don’t see any waiver authority in 36-8001, 1.6.3.

1.6.3. A member assigned a “4” under any of the PULHES headings on AF Form 422, Physical Profile Serial Report, or on SF 88, Report of Medical Examination, by any Air Reserve Component (ARC) or AD medical squadron will not be allowed to participate in any pay or point gaining activity until the “4” has been removed IAW AFI 48-123. Any IDT which is missed due to this medical limitation will be considered excused. A member in this status will be excused from any type of military duty requirements until the profile has been removed and the member found fit for duty. The Personnel Data System (PDS) must be updated to reflect the member as excused.

I responded back to the email by referencing 1.6.5 of the AFMAN. I also stated that I was on AD when the conditions were discovered.

1.6.5. Reservists will not be placed on military orders solely for the purpose of receiving military medical/dental care, evaluation, or examination except as identified in AFI 48-123. Reservists receiving medical/dental care beginning during a tour of duty will not have their orders extended to continue treatment except as identified in DoDI 1241.1, Reserve Components Incapacitation Benefits.

My understanding of AFI 48-123 V2, 4.6.2 contains the exception for 4T conditions incurred or aggravated in the Line of Duty, a member will be retained on active orders until processed through the DES. AFI 36-2910, 1.5.4 states that an LOD must be completed for any member of the ARC regardless of medical impact and 3.5.1 of the same AFI states that the immediate commander may request approval from the group commander to start an interim LOD when the LOD can’t be completed within 7 days and there may be a need for continuing medical treatment or there may be a need for incapacitation pay for a member

I received two completed LOD’s four months after I submitted them to AFRC. I submitted the LOD’s which were initiated by the active duty doctor, because the Base IMA Administrator wouldn’t submit the paperwork to the Immediate Commander at my duty station.

The LOD’s from AFRC were taken off the AF 348 and put on a AFRC 348 and the all of the signatures were from AFRC, not my immediate chain of command as outlined by AFI 36-2910 Table 3. The signature for the immediate commander is not correct and the medical officers block is signed by the same person that signed for the unit commander, an AFR E-8 who is not a doctor or my unit commander.

Is this legal?
DoDI.1241, 6.4..1 states that I’m entitled to pay and allowances while the LOD is being conducted and 6.4.2 states that an appropriate approving authority shall issue an interim line of duty determination in sufficient time to ensure that pay and allowances will commence within 30 days of the date that the injury, illness, or disease was reported, unless there is clear and convincing evidence that the injury, illness, or disease was not incurred or aggravated in a duty status described in DoD Directive 1215.6 (reference (g)) and not covered under Sections 1074 or 1074a of reference (b) or Sections 204(g) or 204(h) of reference (c), or was due to gross negligence or misconduct of the member.

6.6.3.2. DoDI 1241.2 states a Reserve component member on active duty under a call or order to active duty specifying a period of 31 days or more, who incurs or aggravates an injury, illness, or disease in the line of duty shall, with the member's consent, be continued on active duty upon the expiration of call or order to active duty until the member is determined fit for duty or the member is separated or retired as a result of a Disability Evaluation System determination.

I petitioned the AFRC IG's office on this issue. I included the same statues that I have previously memtioned. The IG wrote me back that the hospital had returned me to duty therefore I'm fit yet my condtion prevents me from gaining pay and points. The IG left out the part about the final disposition of the DES and he wrote that HQ AFRC/SGP is the ultimate authority in approving orders for medical conditions. I have not received final disposition from the DES yet.

AFI 36-3212, 8.6.2 states:

8.6.2. ARC members who incur or aggravate an injury, illness or disease in the line of duty while on orders for more than 30 days are not involuntarily released from those orders until final disposition of their disability case. These members' entitlement to full pay and allowances and benefits continue to the same extent provided by law or regulation to regular component members​
I feel that I should be on orders pending the final disposition of the MEB/PEB and that the orders should be retroactive til the date that my condition was reported as stated in DoDI. 1241.2, 6.4.1 and 6.4.2.

Who is correct here?

 
YosemiteSam,

In my opinion, you are! You should have been extended on orders. The doctor who diagnosed you should have initiated an MEB when s/he made the diagnosis.

I think you are entitled to INCAP pay.

You mentioned not having a final disposition from DES. Are you going through an MEB?

There are several ways to address this. You could pursue talking with your chain of command, the IG, perhaps a Congressional. You could also petition the AF Board for Correction of Military Records (asking to correct your records to show you were never separated off of active duty; this should have the effect of capturing your back pay, too).

Bottom line, I think they are denying you your rights.

Please let us know any questions.
 
Jason,

thanks for the quick response and assistance. Yes I'm currently going through an MEB and I have yet to receive the final dispositon. I'm currently reviewing AFRCI 36-3004 incap reg's that I found on this site. Is the most current version? The reason I ask is that AFRC/SG put out a policy letter that they are the waiver authority for in "Line of Duty (MEB)" and not in "Line of Duty (WWD)" conditions. The waiver only allows for IDT's and AT. The waiver states that MPA is not available while on this waiver. That is in direct contradiction to AFRC 36-3004, AFI 48-123, and DoDI 1241.2 and Title 38 USC.

I plan to cite this "irregularity" to Congress. But I what to make sure I am correct in my assertions before I file a Congressional complaint.

What do you think?

Thanks

Sam65
 
Yosemite,

This applies to your situation too. If anyone would like to be interviewed by Army Times Publishing (Army Times, Air Force Times, etc), please let me know. They are also doing a story about this.

http://www.theusreport.com/the-us-r...es-injury-and-government-insurance-syste.html


YosemiteSam65 said:

I’m an IMA assigned to an active duty unit and while I was on a 227 day active duty tour I was diagnosed with Obstructive Sleep Apnea (OSA) and Diabetes Mellitus (Type 2). On the OSA I had a sleep study done which confirmed the condition. I had a second sleep study on the last day of when my tour ended which confirmed the need for the CPAP device. My understanding this condition renders me unfit and eligible for DES processing. The Type 2 was also diagnosed and further evaluation was deemed necessary. This condition is also considered incompatable with military service and should be evaluated by a MEB.

My scheduled IDT’s and AT were cancelled by AFRC and I had an approved CMAS authorization for a follow along tour which was canceled by HQ/AFRC. I received an email from AFRC informing me that I had a 4T profile and that I was ineligible for pay and points, but AFRC/SGP had waiver authority for 4 T conditions. The waiver stipulated IDT’ and Annual Tour only and that no MPA (active duty) days could be done while on the waiver.

I don’t see any waiver authority in 36-8001, 1.6.3.

1.6.3. A member assigned a “4” under any of the PULHES headings on AF Form 422, Physical Profile Serial Report, or on SF 88, Report of Medical Examination, by any Air Reserve Component (ARC) or AD medical squadron will not be allowed to participate in any pay or point gaining activity until the “4” has been removed IAW AFI 48-123. Any IDT which is missed due to this medical limitation will be considered excused. A member in this status will be excused from any type of military duty requirements until the profile has been removed and the member found fit for duty. The Personnel Data System (PDS) must be updated to reflect the member as excused.

I responded back to the email by referencing 1.6.5 of the AFMAN. I also stated that I was on AD when the conditions were discovered.

1.6.5. Reservists will not be placed on military orders solely for the purpose of receiving military medical/dental care, evaluation, or examination except as identified in AFI 48-123. Reservists receiving medical/dental care beginning during a tour of duty will not have their orders extended to continue treatment except as identified in DoDI 1241.1, Reserve Components Incapacitation Benefits.

My understanding of AFI 48-123 V2, 4.6.2 contains the exception for 4T conditions incurred or aggravated in the Line of Duty, a member will be retained on active orders until processed through the DES. AFI 36-2910, 1.5.4 states that an LOD must be completed for any member of the ARC regardless of medical impact and 3.5.1 of the same AFI states that the immediate commander may request approval from the group commander to start an interim LOD when the LOD can’t be completed within 7 days and there may be a need for continuing medical treatment or there may be a need for incapacitation pay for a member

I received two completed LOD’s four months after I submitted them to AFRC. I submitted the LOD’s which were initiated by the active duty doctor, because the Base IMA Administrator wouldn’t submit the paperwork to the Immediate Commander at my duty station.

The LOD’s from AFRC were taken off the AF 348 and put on a AFRC 348 and the all of the signatures were from AFRC, not my immediate chain of command as outlined by AFI 36-2910 Table 3. The signature for the immediate commander is not correct and the medical officers block is signed by the same person that signed for the unit commander, an AFR E-8 who is not a doctor or my unit commander.

Is this legal?
DoDI.1241, 6.4..1 states that I’m entitled to pay and allowances while the LOD is being conducted and 6.4.2 states that an appropriate approving authority shall issue an interim line of duty determination in sufficient time to ensure that pay and allowances will commence within 30 days of the date that the injury, illness, or disease was reported, unless there is clear and convincing evidence that the injury, illness, or disease was not incurred or aggravated in a duty status described in DoD Directive 1215.6 (reference (g)) and not covered under Sections 1074 or 1074a of reference (b) or Sections 204(g) or 204(h) of reference (c), or was due to gross negligence or misconduct of the member.

6.6.3.2. DoDI 1241.2 states a Reserve component member on active duty under a call or order to active duty specifying a period of 31 days or more, who incurs or aggravates an injury, illness, or disease in the line of duty shall, with the member's consent, be continued on active duty upon the expiration of call or order to active duty until the member is determined fit for duty or the member is separated or retired as a result of a Disability Evaluation System determination.

I petitioned the AFRC IG's office on this issue. I included the same statues that I have previously memtioned. The IG wrote me back that the hospital had returned me to duty therefore I'm fit yet my condtion prevents me from gaining pay and points. The IG left out the part about the final disposition of the DES and he wrote that HQ AFRC/SGP is the ultimate authority in approving orders for medical conditions. I have not received final disposition from the DES yet.

AFI 36-3212, 8.6.2 states:

8.6.2. ARC members who incur or aggravate an injury, illness or disease in the line of duty while on orders for more than 30 days are not involuntarily released from those orders until final disposition of their disability case. These members' entitlement to full pay and allowances and benefits continue to the same extent provided by law or regulation to regular component members​
I feel that I should be on orders pending the final disposition of the MEB/PEB and that the orders should be retroactive til the date that my condition was reported as stated in DoDI. 1241.2, 6.4.1 and 6.4.2.

Who is correct here?

Click to expand...
 
bumped for SMSgt
 
you should have been placed on MEDCON orders. I worked with AFMOA for almost a year and have also worked initiating cmas' for almost 7 years. There plenty of us out there not getting due justice. It took my unit 45 days to generate my medcon orders. MOney is definitely an issue but i had a little put away. What hurt was 45 days of not being on tricare prime and having tricare along with private practice doctors send me bills. It can really stress you out.
 
I'm in the same boat,but things are going good so far. You said you worked for AFMOA and cmas, can you give some insight as to why they stop cutting orders, if the person should still be on cmas orders until healed. Also can you give some phone numbers and e-mail address etc. To try to get some answers, because this is a serious issue if alot of people are having this problem!
Thanks Deno
 
This is a serious on going problem in the ANG and ARC...

More later...
 
IT'S DEFINITELY A SERIOUS ON-GOING PROBLEM.----As some of you already know I have an ON-GOING issue with being removed from orders, and this is as a reservist who was on active orders from April 2006 up to Febr. 27, 2011!!---I've narrowed my probem to my Reserve squadron MTF ART, who all the doctors and other squadron administrative personnel depend on with respect to LODs, MEBs, etc. He is the so-called expert, and yet he didn't even know what an Interim LOD was until I explained it to him!--Here's the latest on what is happening with me:

MEB requested by my PCM last year for new medical conditions, LODs also initiated; therefore I should have entered the DES right?(reservist on orders over 30 days)--. At that time I was given only Medical Hold orders; these have lasted until February 27---then not re-newed. LODs still not finalized!--I have requested MEDCON orders once again, but they are being refused. I spoke with my First Shirt and he is finally seeing that the problem may be this ART giving everyone wrong information about me, and giving wrong advice to doctors and others. My Shirt is going to pursue the Interim LOD to see what happens. [Anyone with experience in Interim LODs please let me know].
Today I attended the UTA so that a PHA could be accomplished, even though I had complained its all redundant since I am under continuing care from my PCM. It was ridiculous and a waste of time as I had expected. Even though the doctor had been told a MEB had been requested last year and he agreed I should be undergoing one for the numerous medical issues the medical ART spoke with him after my visit and has told me they will recommend a Participation Waiver!!---Obviously I will not accept this since doing so nullifies any possible MEDCON orders, by regulation!!--He is just intent on not pursuing MEDCON orders!!--And to be honest, other than going to court I see no resolution since no one wants to challenge him, except me. It's all about accountability, and this guy is apparently not accountable to anyone. ANYONE HAVE ADVICE, OTHER THAN TO PURSUE IN COURT?!--(Which will be done if necessary)---How can I persuade anyone regulations and law are being broken?--The Congressional and SECAF IG complaints are underway, but I'm not too optimistic. I see the Air Force giving more excuses and lies. I just wish there was a hotline for this DES problem so an issue could be reported and possibly straightened out. Again, accountability.--OH WELL!
 
Sue him/AFRC; take them to federal court and your legal expenses will be reimbursed when you win. Once your case is filed, send him a copy and watch how fast you are put on MEDCON again.

Here's a document I just uploaded with tons of information you can use to support your case: http://www.pebforum.com/downloads.php?do=file&id=148
 
Great stuff Col.---And believe me I plan to avail myself of every little bit of info you provide. It's amazing how similar our issues are. I'm sure there are others who can say the same thing. There seems to be no other way to make people accountable. I truly believe this medical Air Reserve Tech thinks he is accountable to no one----you should have seen the arrogant way he treated me when he brought me into his office with the doctor who just a short time earlier seemed to believe I needed to be boarded, but now was just shaking his head in agreement with this ART as he told me they were going to recommend a Participation Waiver. As I began telling him I knew all about this waiver he interrupts and says, "WELL I HAVE TO TELL YOU ANYWAY!"---Two officers in the room and this damn GS-9 is in charge----what a crock!---By the way, the LODs were submitted a year ago and nothing yet---when I told him about an Interim, he says, "what's that?"---Now he's told everyone that we must wait for LODs before orders can be cut, if the LODs determine a MEB should be accomplished---even though I've told everyone I've been on continuous orders for years, I have nearly 20 years in, a Participation Waiver doesn't pertain to me and I won't accept, etc----no one listens Colonel. This week I begin to gather all necessary paperwork, documentation, etc for the legal battle ahead. Unbelievable!
 
I am also going through this painful, ridiculous, and awful experience because of the fact that MTFs, commanders, doctors, and the entire MEB process is NOT held accountable to the Congressional, military regs, and DOD regs and instructions! I have filed 2 Congressionals because of my break in service due to an injury I sustained while in the AOR (my home station commander was tdy with me to the same location and knew full well that I got injured) and I received 2 different answers:
1. The LOD process is voluntary
2. My profile was incorrect

My TAG wrote a letter stating that per ANGI 36-3001 I should not have been taken off of orders but I was. 5 people at my unit accused me of being a malingerer and "faking" my injury (which is documented on MRI, xray, and arthroscopic surgery) just to get paid, which is outrageous! I was told to use TAMP benefits and go away, but I was coded for an MEB because I was on a profile for so long and had an orthopedic injury which automatically triggers an MEB.

That said, my IG at my unit filed a complaint but was told to stop helping me out. I was told to cease and decist speaking to other guard members about the LOD/MEB process because I know the regulations quite well...and finally met with the JAG who said that I indeed had a legitimate case to file an AFBCMR. He is unsure whether or not he can assist me with putting the package together, but apparently there are organizations that offer help with a BCMR package which I will share when I get that info.

So, the best route for you to take is the BCMR, esp if you were injured in the LOD. They could back pay you and give you all of the points you would have had should they have retained you on orders, like they were supposed to do in the first place.

My commander has it out to get me out with an administrative or medical separation. Not sure what I ever did, but I have been threatened with the UCMJ and recently an LOR for "going outside my lane" and helping fellow customers and servicemen. I am sorry, helping people is what we are supposed to do in the military, right? Since when did this "screw you" mentality take over? I am so disgusted by the military at this point that I can't wait til they seperate me! I am getting the boot but my COC is trying their darndest to write me up for things that are unfounded. I will ask for a courts martial if it persists or if they take it that high. You can't kick me out on heresay, which is what their claims are based on.

This whole process is convoluted and ludicrous...you have to look out for #1-yourself!
 
VAJumper said:
Yosemite,

This applies to your situation too. If anyone would like to be interviewed by Army Times Publishing (Army Times, Air Force Times, etc), please let me know. They are also doing a story about this.

http://www.theusreport.com/the-us-r...es-injury-and-government-insurance-syste.html
Click to expand...
Im Air Force Air National Guard,, I would love to share this with my Air Force Family... I know this post is a little dated,, and Im Air Force!! "Bleed Blue" If you know of anyone in the AF times, I would love to talk to them!
 
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