PEB termination of proceedings remanded back to state USARNG

eraste87

eraste87

PEB Forum Regular Member
Registered Member
So I just joined this forum and am new to forums in general so please cut me some slack.
I need some help with what I need to ask the Board of Corrections to do in terms of relief. Please post your input following this post it we be most welcomed.

Timeline:

-Dec 10, 2015 PEB terminated hearing and remanded back to state to decided if PTSD and shoulder and any other disabilities should be sent through the IDES process
**After board termination of formal PEB hearing... I had no set PEBLO advising me through the process and no one advising me of my rights to rebuke Formal LOD findings.
-Feb 31, 2016 ETS Discharge per Dir. Manpower and Personnel of state NGB component
**meanwhile the state guard component(state unnamed) slowly began and conducted a formal investigation for the LOD finding for PTSD even after my ETS discharge. (say what?!)
-Dec 20, 2016: S-1/adjuants response of from my august 2016 email where I stated I would like to elect making a statement however I would like to first request a copy of s-1/adjuants LOD report "request receipt of response" and s-1/adjuant never responded after that.
-2018- LOD formal investigation signed and officially completed. Findings: "Not in the line of duty-not due to own misconduct" for PTSD
***The completely spaced on sending my shoulder contention through to IDES process which had an official LOD. whoops!
***Question isn't there a specific timeline for the Guard/reserves to conduct and fully conclude a finding on a formal LOD investigation within a certain timeframe. 180 days I think. But I have to review army reg for LOD investigation as it may have changed since then.
***Question: Isn't this some sort of injustice while I wasn't properly assigned a PEBLO for the process of the state National guard component to make its findings on the LOD determination.
*** these guys if they would have found me to be "not in the line of duty- due to own misconduct" ; I could've lost what benefits I had. ugh geez.

After asserting that Ive experienced injustice(s), exactly what do I ask the board of corrections to do in terms of granting me full relief for medical retirement with retroactive backpay including tricare?
-The correct verbiage you would use would be grateful here cause im not sure how to ask the board fro certain relief.


Thank you in advance for your response.

Hooah!
 
as of 2023 I am 100% P&T for PTSD and TBI with SMC levels S and K.
this va material weight of evidence should help the board see that there should've been a finding of service connection for PTSD originally. as the guard contended that they weren't going to send me through IDES bc the VA in 2014 decided that my PTSD wasn't service connected. ugh yea. So I kept the case open by appealing it and eventually won service connection after I ETS'd from Service. The effective date for the award for PTSD is Nov 18, 2013 which is during my years of service. So I figure that should be a good point to make the board. Bc of further development the condition of PTSD wasn't originally found to be in the line of duty but later found to be service connected by the VA.
 
Found something.. there appears to be a "timeliness" for the IO to complete his/her investigation for the LOD! So it's 50 calendar days. Yea I think they went over that mark. :)

***Question isn't there a specific timeline for the Guard/reserves to conduct and fully conclude a finding on a formal LOD investigation within a certain timeframe. 180 days I think. But I have to review army reg for LOD investigation as it may have changed since then.
Click to expand...
C. Duties of Investigating Officer.
-->The primary duties of an investigating officer are to become familiar with the applicable
provisions of AR 600-8-4; to collect relevant evidence concerning the incident under
investigation; to be thorough and impartial; to make findings supported by exhibits; to prepare
the report on DD Form 261; to conduct and complete the investigation in a timely manner; and to
submit the report to the appointing authority. The investigating officer must complete the report
within 50 calendar days of the occurrence of the disease, injury, or death.
 

Attachments

My recommendation would be to get a competent attorney to draft and submit your BCMR. There are definite wrongs and injustices, which is evidenced by the service connection being awarded post ETS. Without an attorney you are rolling the dice on one of your last avenues for redress. After a BCMR, your would have to pursue a Claim in the Federal Court of Complaints, and you would definitely need an attorney then. I have had to hire a private attorney in my own case. I realized that I can only push things so far, and I don't know what I don't know. It sucks having an unexpected financial burden by retaining an attorney, but without one your odds severely decrease.
 
nomad_romad said:
My recommendation would be to get a competent attorney to draft and submit your BCMR. There are definite wrongs and injustices, which is evidenced by the service connection being awarded post ETS. Without an attorney you are rolling the dice on one of your last avenues for redress. After a BCMR, your would have to pursue a Claim in the Federal Court of Complaints, and you would definitely need an attorney then. I have had to hire a private attorney in my own case. I realized that I can only push things so far, and I don't know what I don't know. It sucks having an unexpected financial burden by retaining an attorney, but without one your odds severely decrease.
Click to expand...
Hey Nomad_Romad. Thank you for your response. Next question: would you happen to know exactly what I should be asking the BCMR for in terms of redress for medical disability retirement list (MDRL)?
 
Denial of Due Process Under the Due Process Clause of the Constitution. This is settled case law under Kelly v. United States. In this case the LOD and follow on benefits are your "Property." You are also guaranteed a full and fair hearing under 10 USC 1222, I believe this is the right section. You were not provided a PEBLO in the process. This is mandated under DODI 1241.01 I believe. You were not given a chance to challenge your NARSUM, Request an Independent Medical Review (IMR), and you were not given the opportunity to write a letter of exception to the NARSUM. You were further denied appeal processes in the IDES. These are just things off the top of my head. I have kinda unplugged myself from this, now that I have an amazing attorney. I am leaving it in his competent hands. I would not go this process alone. You have already seen that they will steamroll you, and wrong you to your face with impunity. They will do the same thing to you in the BCMR. You could write the most compelling evidence backed BCMR, and they will chuck it in the can because they know nothing will happen to them. An attorney gives your appeal the "teeth" it needs.

This is just my highly unqualified advice. In a perfect system all you would have to do is point out the glaring injustices and they would rectify them. We know all to well that their interests are not in making things right, but protecting their purse strings. Hit me up if I can do anything else.
 
nomad_romad said:
Denial of Due Process Under the Due Process Clause of the Constitution. This is settled case law under Kelly v. United States. In this case the LOD and follow on benefits are your "Property." You are also guaranteed a full and fair hearing under 10 USC 1222, I believe this is the right section. You were not provided a PEBLO in the process. This is mandated under DODI 1241.01 I believe. You were not given a chance to challenge your NARSUM, Request an Independent Medical Review (IMR), and you were not given the opportunity to write a letter of exception to the NARSUM. You were further denied appeal processes in the IDES. These are just things off the top of my head. I have kinda unplugged myself from this, now that I have an amazing attorney. I am leaving it in his competent hands. I would not go this process alone. You have already seen that they will steamroll you, and wrong you to your face with impunity. They will do the same thing to you in the BCMR. You could write the most compelling evidence backed BCMR, and they will chuck it in the can because they know nothing will happen to them. An attorney gives your appeal the "teeth" it needs.

This is just my highly unqualified advice. In a perfect system all you would have to do is point out the glaring injustices and they would rectify them. We know all to well that their interests are not in making things right, but protecting their purse strings. Hit me up if I can do anything else.
Click to expand...
Next question is it even legal to be discharged by the Manpower of Personnel which is a LTC by way of ETS then have an investigation for an LOD where I could've lost all benefits according to them after the discharge date by ETS. Is that "legal" for them to discharge me then have me and be no longer in the Guard and be expected to have legitimate representation for a legal rebuttal to their formal LOD?
As former enlisted I believe you go by the higher officer entity/order. The Director of Manpower and Personnel's order of ETS is what I went by and was confused beyond the fact that there was a formal process legally being conducted after that fact by the S-1/Adjutant for a formal LOD for PTSD. I went by the ETS which explains legitimate confusion on why there might be an issue following an order from a Captain (s-1/adjuant) rather than the Director's authority. This is one of the main errors of improper process that I am trying to argue. Does this argument to you seem to have any basis as an argument?
Also I believe the Army Regulation states that there must be a timeliness of 180days or so for a formal LOD to be conducted then sent on to higher. There investigation took some time....from 1-31-2016 and was digitally signed by the appointing authority and Investigating officer on 4-13-2017. This is over a year to complete. And the investigating officer did not provide their report to me which leads me to believe they didn't follow the Army Regulation that states that all delays must be documented and explained to the higher authority (Chief, National Guard Bureau, Washington DC) which was on 05-01-2017 according to the dated signature.

Your response Nomad_Romad has given me hope. Thank you again.
 
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You should not have been separated/retired while there is an open LOD investigation/process going on. In the Air Guard, you are actually to be maintained on orders through the DES process. In the Air Guard you also get to appeal LOD Determinations to the SECAF. I'm sure the Army Guard must allow an LOD appeal to your Secretary in the DES process as well. What they did is let you just ETS because they knew if they did nothing this would happen automatically. They also knew that once you are fully separated then it is not their problem at all, and that you would have to appeal to the BCMR. My Wing attempted this with me also. I was set to retire last year in April. I beat their door down telling them that they must extend or allow me to reenlist. Luckily for me they caved on this issue, and I am still currently in awaiting my final appeal decision.
 
well, when I consider amount of time and money towards going to federally court. Is medical retirement really worth it? Currently have 100% P&T and smc s and k.
 
What kind of benefits would I be looking at once? I'm medically retired from the army?
 
Since I was prior Louisiana National Guard…
What is to be expected in terms of backpay for 40% and medical retirement?
What about HIPAA violations? How do I report individuals and make sure beyond a reasonable doubt that they are discipline?
 
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