I am a LTC with 16 years. My MOS is Vascular Surgeon. I have 2 conditions that led to my MEB. The MEB found me unfit for duty, but the 199 came back as fit. The justifiication for finding of fit was that I have state licensure and hospital privileges. If I proceed with the formal review, my representation is telling me that there is a <1% they find me unfit. If I proceed and don't get released, there will be retribution in the ways of no promotion, getting pcs'ed around to other hospitals etc. Does anyone have experience in making the argument that being a surgeon/ physician in the ARM is very different that maintaining hospital credentials and licensure? Thanks.
Physicians Meeting Hospital Credentials as Fit Finding?
- Thread starter arthursz
- Start date
I do not understand this issue. The intent of the new regulations from this year is clearly for worldwide deployable Soldiers with no functional limitations that interfere with basic warrior tasks. Given the sweeping changes to readiness with the July 27th update to regulatory guidance, I just don't see how the situation you are describing could be justified.
AR 635-40: I would question what regulatory guidance (specifically) is being used to make that fit determination. Note that the only verbiage I am aware of regarding special processing requirement for MC officers involves mandatory review (AR 635-40, Ch 4-25) in some circumstances. There is no longer any specific verbiage regarding MC officers being found fit/unfit that I am aware of. Note the specific verbiage in Ch 5-4 (c) 1: "As a minimum standard, the functional tasks listed on DA Form 3349 will be considered common military tasks required of all Soldiers." The words "license" and "credential" do not appear in the DES regulation. There is discussion about duties commiserate with rank, etc, however this is listed separate from the clearly delineated minimum standard for fitness, which includes those aforementioned functional areas.
AR 40-501 (updated 27 July 2019): This sounds like it was not the issue; you mentioned you were found 'unfit' at MEB, I believe a more accurate statement was that you were found to not meet the medical standard for retention, which by definition (since DES is the one saying it) means that you do not. So it is now a fact that you do not meet the medical retention standard per AR 40-501. If the reason you do not meet the medical retention standard was due to inability to perform basic warrior tasks IAW STP 21-1 or any of the functional tasks listed in DA Form 3349 (the 'checkboxes'), then AR 635-40 clearly states that you should be found unfit.
DA PAM 40-502: There is additional regulatory guidance in this new instruction (Jul 27, 2019) that probably isn't the issue either, given you made it through the MEB phase appropriately.
I would question, in this climate of 100% readiness for all Soldiers, including physicians, how the PEB is meeting the intent of the applicable regulations by finding you fit given you do not meet the medical retention standard. Additionally, given the clear mandate to force shape the medical corps, such as action merits further scrutiny in my opinion. I would be curious to know what regulatory guidance is being used in reference to credentialing/privileging/licensing as sole factors in finding an officer fit.
AR 635-40: I would question what regulatory guidance (specifically) is being used to make that fit determination. Note that the only verbiage I am aware of regarding special processing requirement for MC officers involves mandatory review (AR 635-40, Ch 4-25) in some circumstances. There is no longer any specific verbiage regarding MC officers being found fit/unfit that I am aware of. Note the specific verbiage in Ch 5-4 (c) 1: "As a minimum standard, the functional tasks listed on DA Form 3349 will be considered common military tasks required of all Soldiers." The words "license" and "credential" do not appear in the DES regulation. There is discussion about duties commiserate with rank, etc, however this is listed separate from the clearly delineated minimum standard for fitness, which includes those aforementioned functional areas.
AR 40-501 (updated 27 July 2019): This sounds like it was not the issue; you mentioned you were found 'unfit' at MEB, I believe a more accurate statement was that you were found to not meet the medical standard for retention, which by definition (since DES is the one saying it) means that you do not. So it is now a fact that you do not meet the medical retention standard per AR 40-501. If the reason you do not meet the medical retention standard was due to inability to perform basic warrior tasks IAW STP 21-1 or any of the functional tasks listed in DA Form 3349 (the 'checkboxes'), then AR 635-40 clearly states that you should be found unfit.
DA PAM 40-502: There is additional regulatory guidance in this new instruction (Jul 27, 2019) that probably isn't the issue either, given you made it through the MEB phase appropriately.
I would question, in this climate of 100% readiness for all Soldiers, including physicians, how the PEB is meeting the intent of the applicable regulations by finding you fit given you do not meet the medical retention standard. Additionally, given the clear mandate to force shape the medical corps, such as action merits further scrutiny in my opinion. I would be curious to know what regulatory guidance is being used in reference to credentialing/privileging/licensing as sole factors in finding an officer fit.
I can give a little more guidance coming from the MSC. We are in dire need of physicians both deployable and in garrison. They are cheap assets considering their civilian counterparts make 3-10 times as much as them depending on specialty.
There will be several medical billets that will be cut soon. The Army will no longer employ Military pediatricians for instance. I was deployed with one and he was the BDE surgeon.
In the meantime, unless you cannot perform your in garrison duties, every physician will be found fit.
That's why I'm confused - what is the justification for fitness given the new 27 July regulatory changes requiring all Soldiers to meet minimum standards (i.e. removing MC officer exceptions for fitness)?
Using me as an example (I'm not in a MEB), my "garrison duties" are strictly non-clinical and involve multiple quarterly field training exercises, ranges, and about 50% time deployed (again, not doing clinical medicine). I could perform all of my duties with the exception of PA supervision without being licensed or credentialed, but I could not perform most of them (certainly not to the standard of the job) if I was unable to perform Basic Warrior Tasks IAW STP 21-1 or all functional areas on the DA 3349 (both regulatory standards for retention/fitness, see above post for references). I keep my credentials up with ODE on my own time as there is no opportunity to do so at my local MTF, but if I had chosen not to I don't see how my credentials/privileging would have been maintained given the operational demands of my job. So if OP was in my job with the same medical issues (i.e. doesn't meet the retention standard, I assume due to not being able to perform minimum standard Soldier tasks IAW AR 635-40 Ch 5-4), what regulatory guidance was used to find that MC officers fit?
Bottom line - what regulation is used to find MC officers fit, when a similar non-MC officer would not be found fit?
I appreciate the discussion - a colleague called me just last night with a similar issue, so I know that it isn't just OP.
Using me as an example (I'm not in a MEB), my "garrison duties" are strictly non-clinical and involve multiple quarterly field training exercises, ranges, and about 50% time deployed (again, not doing clinical medicine). I could perform all of my duties with the exception of PA supervision without being licensed or credentialed, but I could not perform most of them (certainly not to the standard of the job) if I was unable to perform Basic Warrior Tasks IAW STP 21-1 or all functional areas on the DA 3349 (both regulatory standards for retention/fitness, see above post for references). I keep my credentials up with ODE on my own time as there is no opportunity to do so at my local MTF, but if I had chosen not to I don't see how my credentials/privileging would have been maintained given the operational demands of my job. So if OP was in my job with the same medical issues (i.e. doesn't meet the retention standard, I assume due to not being able to perform minimum standard Soldier tasks IAW AR 635-40 Ch 5-4), what regulatory guidance was used to find that MC officers fit?
Bottom line - what regulation is used to find MC officers fit, when a similar non-MC officer would not be found fit?
I appreciate the discussion - a colleague called me just last night with a similar issue, so I know that it isn't just OP.
I'm in the same situation. I m on my second PEB, initial findings of Fit, even though the Command and my MEB CT surgeon recommend separation (I'm a Navy Ortho surgeon still practicing). They completely ignored the recommendation of my CO, my CT surgeon and stated that since I haven't had any deficiencies in patient care and haven't had to modify my work schedule I am fit... I am currently appealing the IPEB findings as I requested the work cards to se how they arrived at this decision and then submitted as attachments letters from both an expert physician who I was sent to be evaluated by for their recommendation and also documentation from additional medical visits etc in direct apposition to how they arrived at their conclusion and also pointed out they solely relied on the fact that I haven't injured a patient or had to modify my work is completely bogus as if I have an event with my aneurysm I go down hard and won't have this "decline" in my ability to work
The MEB process for medics is different. I believe the system was intentionally made different to prevent fraud. But the scales have tipped to far. The execution of the system is way biased. I highly suggest you contact Jason Perry at peblawyer.com
I would be curious to hear more about your situation, as it sounds like our situation is very similar. feel free to reach out, [email protected]
Thank you for your post. This new climate is what pushed me into the MED Board. There response and justification was very simple - it stated that because I had credentials and state licensure, I am retained. As I create my rebuttal and prepare for the formal, this is helpful, but specifically I am not sure what to focus on - from my perspective, being a military vascular surgeon is very different than a civilian practice. Being a nondeployable surgeon in this climate is a death sentence. I will not get promoted. I cannot advance in anyway. I am having working 2-4 hours per day and spending the rest of the time addressing my medical conditions/ therapy. I have 3 conditions that are found not fit for duty - lumbar radiculopathy, neurogenic thoracic outlet, and left foot arthritis. The arthritis is systemic and now affecting my distal DIP joints in both hands. I do not operate now due to the back and foot pain, but the hands are coming along. I understand their concerns about fraud, but the truth is, financially I would be better to struggle through the next 3 years and get the 20 year retirement. Any further thoughts would be greatly appreciated on how to frame my formal rebuttal. My legal representation provided is not helpful. I did reach out to Jason Perry; he sounds very knowledgeable, I was just gun shy on the financial investment.
I did speak with him, and the money is what is holding me back. Do you have first hand knowledge of his work or can you provide any further information? I just don't know is the truth. Struggling through this is awful, dealing with the PEBLO, and I know my offered legal representation is worthless. I am just worried about dropping that kind of money if the case is hopeless.
199 was three weeks ago. Did you accept the findings or did you request a FPEB? I can see where they would justify retaining you based upon credentials.
IMO you are going to need legal representation to ensure you are found unfit, if that is what you desire. There is much more than just the fit/unfit decision here at stake. Go wit Jason Perry, the cost is minimal in comparison to what you have to lose.
For what it's worth I agree with other posters regarding retaining an experienced non-active duty attorney - the potential cost/benefit would be worth it to me. I do not know your specific functional limitations, but if they preclude functional tasks IAW 40-501, 40-502, and 635-40, by regulation (new guidance) you must be found unfit. If you were in my unit I would be escalating your case myself because you can't be involuntarily retained while not meeting the medical standard for retention in the current Army. I would use the fact that I have had multiple other Soldiers separated with less unfitting conditions than you have, and then ask what specific reference is being used to supersede 635-40 (there is a SECNAVINST that applies to Navy, but none that I am aware of that apply to Army). I'm also in an infantry unit so your experience in the bureaucratic hell that is MEDCOM/DHA/??? may be very different. Sorry for what you're going through - that sucks.
Sorry for the triple post - forgot to add, you might consider (while framing your rebuttal) showing precedent with another non-physician health care provider being found unfit despite no adverse credentialing action or adverse licensing action. You will have no trouble finding these cases in the Army, we are averaging about 1 every month or two in my area. PAs, NPs, BH providers, etc.
What we often forget about the PEB is that it is a personnel process. The MEB is a medical process. The PEB is not. The medical aspects are important in the PEB, but it remains a personnel process.
That is the PEB recommendation - however, I have added 2 further conditions to the permanent profile and have requested a formal hearing. I am still waiting.
I think that is a key point. As a physician, I am focused on the MEB aspect, but you are right - they are dead locked to keep me on AD even though I do less than 2 hours of work per day.
That is a great point. Any recommendations on linking up with similar PAs / NPs/ etc as case examples.
I appreciate your MSC perspective. But that is just it, I am not performing in Garrison duties. I am able to work <2 hours per day. My utility is limited by chronic pain with no resolution for the past year and half. The PEB board used medical credentialing and state licensure as the reasons for retention. The smart move is drag this out to 20 years and get full retirement - but I now retribution is on the horizon. Non-deployable surgeons have a target on their backs right now. Worst case scenario that are forcing wavers to deploy you. It's a bad time as you stated with personnel shortages.