no INCAP supposed to be on orders.

Ruptured Duck

Moderator
PEB Forum Veteran
You NEED to listen to Jason on this one. You have a wrongful discharge law suit. I highly recommend you contact Jason ASAP. He is a very busy guy but he will get back to you. I cannot recommend him enough. You do not want to try and do this yourself, trust me. I will share with you some comments I made to another brother in this situation.

First things first. Do not panic and do not accept reserve incapacitation pay or sign anything under any curcumstances. The adminstrative record is all there and they can't change it. What has happend to you happens all the time. Everything is in your hands now. You are the only one that will determine you fate. Do not expect anyone in your chain to do anything for you no matter how sympathetic thay are. The "useful idiots" that chopped your orders expect you to go away without a fight. They win because too many people accept it and roll over an die. However, providing your case meets all the requirements, you are the one who actually has them by the short hairs. The ONLY one who can now lose your case is you. Be prepared for a very long battle. The key to dealing with useful idiots is understanding the Law. You are going to have to understand it inside out. But remember this, no matter how much they try, they can't delete the law, they can't modify the law, they can't change the law or ignore the LAW. It is what it is.

I have had my orders chopped 11 times over the last two years. This last time however, I now have what is known as a cause of action to seek relief in the Federal Court system. I am currently seeking all ANG or ARC members who have been on active duty for more than 31 days and have been illegally been removed from active duty. I am also interested in hearing from other service members from other services who have had this happen in order to explore possible class actions and or Congressional actions. Please feel free to contact me. I will be more than happy to discuss the merits of my case in order for you to have a better understanding of your position before contacting an attorney like Jason.

Once again, I cannot speak highly enough of Jason Perry. Everybody on this site needs to support him and this site and all the other members that devote so much time and energy out here. If you have any doubt as to the out come of your MEB/PEB, Jason is the best investment to your future you will ever make. Don't be stupid. You have to play hardball when you are dealing with people who have no idea what they are doing and couldn't care less about your rights. Remember, nobody is giving you anything. It is not only your right but it is your duty as an American service man or woman to hold the DoD to the same standards they always expected of us.


-SMSgt
 

Ruptured Duck

Moderator
PEB Forum Veteran
One more thing. VAJumper has some pretty good contacts with the ARC IG and is a great guy. Do not hesitate to contact him for help with filing a complaint or to ask a tough question. We are all in this together.

-SMSgt
 

Ruptured Duck

Moderator
PEB Forum Veteran
BTW- here is the Law as it applies to ANG and ARC members:



Pursuant to 37 U.S.C. § 204(a)-(b);

(a) The following persons are entitled to the basic pay of the pay grade to which assigned or distributed, in accordance with their years of service computed under section 205 of this title—

(1) a member of a uniformed service who is on active duty; and
(2) a member of a uniformed service, or a member of the National Guard who is not a Reserve of the Army or the Air Force, who is participating in full-time training, training duty with pay, or other full-time duty, provided by law, including participation in exercises or the performance of duty under section 10302, 10305, 10502, or 12402 of title 10, or section503, 504, 505, or 506 of title 32.
(b) For the purposes of subsection (a), under regulations prescribed by the President, the time necessary for a member of a uniformed service who is called or ordered to active duty for a period of more than 30 days to travel from his home to his first duty station and from his last duty station to his home, by the mode of transportation authorized in his call or orders, is considered active duty.

DoDI 1241.2;

6.6.3.2. 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.

AFI36-3212;

8.6.2. ARC members who incur or aggravate an injury, illness or disease in the line of duty while onorders for more than 30 days are not involuntarily released from those orders until final disposition oftheir disability case. These members' entitlement to full pay and allowances and benefits continue tothe same extent provided by law or regulation to regular component members.
 

Ruptured Duck

Moderator
PEB Forum Veteran
Jumper, it all boils down to 37 USC 204, aka the “Military Pay Act”. This is the actual law. This is where everything DoD and the various services derive their instructions from. The key here is what type of duty (under 31 days AD or over 31 days AD) someone falls under when they become medically incapacitated.

If you are on orders for over 31 days (doesn’t matter if you haven’t served 31 days yet) or if you have performed 31 days of AD the law is clear. You fall under 37 USC (a)-(b):
(a) The following persons are entitled to the basic pay of the pay grade to which assigned or distributed, in accordance with their years of service computed under section 205 of this title—
(1) a member of a uniformed service who is on active duty; and
(2) a member of a uniformed service, or a member of the National Guard who is not a Reserve of the Army or the Air Force, who is participating in full-time training, training duty with pay, or other full-time duty, provided by law, including participation in exercises or the performance of duty under section 10302, 10305, 10502, or 12402 of title 10, or section503, 504, 505, or 506 of title 32.
(b) For the purposes of subsection (a), under regulations prescribed by the President, the time necessary for a member of a uniformed service who is called or ordered to active duty for a period of more than 30 days to travel from his home to his first duty station and from his last duty station to his home, by the mode of transportation authorized in his call or orders, is considered active duty.
Jumper, I can’t see how either one of these can be used to remove someone from AD if the fall under 37 USC 204 (a)-(b), for lack of a better phrase, what I call the 31 day rule.
What I do see is waivers for service members to perform IT’s when they are not entitled to AD orders and have profile restrictions.
Help me out. I’m not sure how AFRC can remove somebody entitled to orders by using this…
-SMSgt
 

Ruptured Duck

Moderator
PEB Forum Veteran
I JUST CAME ACROSS THIS COMMUNICATING WITH ANOTHER ARC MEMBER WHO HAS BEEN ON AD FOR OVER 31 DAYS. IF AFRC IS USING THIS "PATICIPATION WAIVER" TO REMOVE PEOPLE FROM ACTIVE DUTY IT 100% UNLAWFUL!!!!!!!!

We need to talk. Jason need's to get in on this one.

-SMSgt
 

FRAUSCHMID

PEB Forum Regular Member
hi everyone,

sorry i hven't been on the board in a while, I finally had surgery. it was more than just a gleniod labrum tear, they discovered as expected by the surgeon a greater than 50% tear. No flowers, card, or call from the unit, however they did take the time to send me a referral epr, for not being able to complete my duties-yes I had severe limitations. My only duties were to watch a phone that never rang and update two binders, done, done, and done. The letter accompanying the referal states to contact my first shirt for help--well he quit!
Help! I am in deep way over my head!! does anyone know of a good federal labor law/ military understanding in California? All this has also forced me to be referred to mental health services-which we don't have at my base, so I was referred to civilians.

I don't know how much more I can take!

twenty years, twenty good years, not one less than above average ratings
 

robs42

Well-Known Member
PEB Forum Veteran
frauschmid,

welcome back to the board and i hope your rehab goes well. i feel your pain w/the mental health piece. the only thing we should be worrying about after surgery is: getting better. my med commander did the same thing w/me a few days after my fusion. she called to tell me that my monthly paperwork from my doc had expired. keep in mind i just got out of the hospital and was laid up in bed. i tried to explain to her the fact that i just got home and had a folllow-up w/the doc in a few days. she started to b!tch @ me and told me to call him and have them fax paperwork over stating that i am still under his care and unable to work. then she started talking to me like a child and that the resaon they require this monthly paperwork is to "check-in"on me, because of past issues they had w/other peope in my unit. so i said to he in these words "if you are so damned concerned about me, i just spent the past week in the hospital, no one from the unit called to see if i was alive and i have unable to get out of bed, walk or go to the bathroom on my own" that's when she pulled the old i am a Col, TSgt! so i said: "COL, i see where this is going..you'll get your paperwork and i'm sorry for wasting your time" ever since then it's been down hill w/me and her...i don't know why? :)
i don't know where i was going w/all of this but you are not alone bro! if i can be of any help, let me know. i try and check in daily. good luck and keep us posted!
 

FRAUSCHMID

PEB Forum Regular Member
just got notified that by Peblo that i have been referred for an MEB. Additionally, the MEB was backdated to Dec 2009. Now what to do? I will scour the site and see if i can figure it out. PEBLO is saying that they anticipate my being temp retired in about 4 months and I will have to pay for medical bills from and for the injury at that time. Doc says I should return to work at the end of summer and fully recovered by Jan 2011. Isn't an MEb overkill?
 

Jason Perry

Benevolent Leader
Site Founder
Staff Member
PEB Forum Veteran
Registered Member
just got notified that by Peblo that i have been referred for an MEB. Additionally, the MEB was backdated to Dec 2009. Now what to do? I will scour the site and see if i can figure it out. PEBLO is saying that they anticipate my being temp retired in about 4 months and I will have to pay for medical bills from and for the injury at that time. Doc says I should return to work at the end of summer and fully recovered by Jan 2011. Isn't an MEb overkill?
Not sure about whether MEB is overkill, especially given that they can return you to duty. However, what caught my eye is your statement about having to pay for medical bills. Maybe I am missing some details, but you are entitled to health care for your LOD injuries.
 
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