Question-PEB/TDRL vs. involulantary seperation

CDiddy

PEB Forum Regular Member
Can't find the answer to this question in any of the DOD regulations.

If an active duty Officer has had ongoing medical issues over the course of 2 years.

The MEB is initiated, immediately following, the service member subsequently receives a second pass for promotion and is given a mandatory retirement date.

Which seperation takes precedence. Will the service member be seperated with involuntary seperation pay in accordance with the second pass or will the medical seperation take precendence?

Will he/she be dropped from PEB consideration upon notification of the second pass for promotion.

Will the Officer be seperated in accordance with the failure to select, even if the medical issues arguably contributed to the failure to select?
 

Jason Perry

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CDiddy,

Welcome! Medical Processing takes precedence. See AR 600-8-24:

"1–24. Referral for physical disability evaluation
If a commissioned or warrant officer is being processed for REFRAD, separation, or retirement or has been referred for elimination action, when it is determined that the officer has a medical impairment that does not meet medical retention standards, the officer will be processed as set forth in paragraphs a, through d, below.
a. A commissioned or warrant officer under investigation for an offense chargeable under the Uniform Code of Military Justice (UCMJ) that could result in dismissal or punitive discharge may not be referred for or continue
disability processing unless—
(1) The investigation ends without charges.
(2) The commander exercising proper court-martial jurisdiction dismisses the charges.
(3) The commander exercising proper court-martial jurisdiction refers the charge for trial to a court-martial that
cannot adjudge such a sentence.
b. When a commissioned or warrant officer, as applicable, is being processed for one of the actions listed in (1) through (5), below, the officer will be processed in accordance with the provisions of this regulation and through the MEB/PEB system. If the result of the physical disability evaluation is a finding of physical fitness, the Army Physical Disability Agency will approve the findings for the Secretary of the Army and forward the proceedings to CDR,
HRC–Alexandria (AHRC–OPD–A), to be processed with the other action. If a physical disability evaluation results in a finding of physical unfitness, both actions will be forwarded by CG, HRC–Alexandria (AHRC–OPD–A), to the
Secretary of the Army or his designee for determination of appropriate disposition.
(1) Referral to the DAADB except when the DAADB is convened as a result of an imposed reduction in force.
(2) Involuntary REFRAD due to civil conviction or moral turpitude.
(3) Resignation for the good of the service.
(4) Referral for elimination under chapter 4.
(5) Request for separation, resignation, or retirement in lieu of elimination.
c. When a physical disability evaluation of an officer processed for separation or retirement for the reasons indicated above results in a finding of unfitness and a recommendation that the officer be placed on the Temporary Disability
Retirement List (TDRL), the Secretary of the Army or his designee may direct that the officer be placed on the TDRL with the provision that if the officer is later removed in due course from the TDRL for disability separation or
retirement, the officer is to be retired, but if the officer is later removed in due course from the TDRL because he is found fit, the officer is to be separated from the service, effective on the date of the officer’s removal from the TDRL with a specified characterization of discharge. As in the case of an officer processed for separation or retirement for the reasons indicated above whose physical disability evaluation results in a finding of unfitness and a recommendation that the officer be separated or permanently retired, the Secretary of the Army or his designee may direct that either the separation or retirement action under this regulation or the disability action take precedence.
d. When an officer is processed for separation or retirement for reasons other than those indicated above, physical disability takes precedence if the officer is retained with consent. The procedures in paragraph 1–22 will be followed.
e. Officers previously determined physically unfit and continued on active duty under AR 635–40 must be referred for disability evaluations at final retirement or separation."

This assumes you are in the Army (if not, I will point you to your appropriate service regulation).
 

CDiddy

PEB Forum Regular Member
Jason,

Thanks for the quick response.

The Marine Corps is the service in question in this case.

Trying to find a definitive answer in the Marine Corps Seperations Manual or Navy Regs has been quite elusive.

Thanks again.
 

Jason Perry

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This is what the MARCORSEPMAN has to say:

5006. INVOLUNTARY DISCHARGE AS A RESULT OF A SECOND FAILURE OF SELECTION FOR PROMOTION
*1. Each officer on the active duty list serving in any grade of chief warrant officer, first lieutenant, captain, or major who has twice failed selection for promotion to the next higher grade will be discharged from the service unless: otherwise continued on active duty, in the sanctuary zone with between 18 and 20 years of active service and serving until retirement eligible, retired, or, if a permanent limited duty officer, reverted to a warrant officer or enlisted status. Guidance on actions taken in regard to officers incurring a second failure of promotion is contained in SECNAVINST 1920.6 series. General guidance is contained in table 5-1 of this Manual.
2. Within 30 days after publication of the board’s results, officers covered under this provision will receive a status letter from the CMC (MMSR) via the
chain of command. This letter will inform such officers of their options concerning entitlement to severance or separation pay and the latest date
which they may elect discharge. Included with this letter is an enclosure that the officer will complete and return to the CMC (MMSR) making known
the officer's pay and separation date choices.
3. The discharge or retirement of an officer pursuant to this provision shall be considered to be an involuntary separation for the purpose of any other
provision of law. Except as indicated below, under no circumstances will an officer directed to separate for twice failing selection to promotion be
retained beyond the mandatory discharge date.
a. Retention beyond an involuntary separation date for a commissioned officer may only be authorized by the Secretary of the Navy if an officer is
confined to a hospital as an inpatient, or the officer's medical board has been accepted by the Physical Evaluation Board for a determination of physical disability entitlement. Deferment of retirement or separation for medical reasons is governed by 10 U.S.C. 640. The CMC (MMSR) must be immediately notified by naval message of any officer in such situation(s)."

If this helps you, then you are fine. However, if this does not, I still think that the overall scheme of 10 USC Chapter 61 trumps these other administrative provisions. Sounds like you should start with the request for extension (although, depending on when your scheduled separation date is, the MEB and PEB may well be completed). Would need more details to say more.

Hope all works out in your favor.
 

Jason Perry

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Here is a better authority:

SECNAVINST 1850.4E

"3403 Disciplinary Or Misconduct Administrative Action
a. The disability statutes do not preclude disciplinary separation. Such separations as described herein normally supersede disability separation or retirement. Whenever a member is being processed through the PEB and, subsequently the member is processed for an administrative involuntary separation for misconduct, disciplinary proceedings which could result in a punitive discharge, or an unsuspended punitive discharge is pending, or is pending separation under provisions that authorize a characterization of service of Under Other Than Honorable conditions (UOTH), disability evaluation shall be suspended and
monitored by the PEB. The MEB Convening Authority should forward to the PEB either a copy of the Statement of Awareness/Letter of Notification, the court-martial charges, or the Court Martial Order, as appropriate. The PEB case will remain in suspense pending the outcome of the nondisability proceedings. If the action taken does not include punitive or administrative discharge for misconduct, the PEB will continue to process the case. If the action includes either a punitive or administrative discharge for misconduct, file the medical board report in the member's terminated health record...
d. Non-misconduct/Non-UOTH administrative separations do not supersede or preclude disability separation. Consequently, final closure must occur on all disability processing/appeals prior to finalization of Non-misconduct/Non-UOTH administrative separation by field commanders/service headquarters."
 

madtexan

PEB Forum Regular Member
Jason/CDiddy,

I came across this and was wondering how it turned out? I am falling under this topic myself. MEB board started for PTSD, 2P'd for promotion so given a mandatory separation date (July,2012) . Was informed by medical that while I was on limited duty I could not be separated. Was contacted by HQMC, SEPS branch and told that the mandatory sep date was not postponed unless the MEB had been sent to the PEB. I have completed the VA appointments and such but not sure if my MEB will be complete and sent to PEB by July, 2012 which puts me in a bind.

HQMC referenced the below from the MC separations order:

a. Retention beyond an involuntary separation date for a commissioned officer may only be authorized by the Secretary of the Navy if an officer is
confined to a hospital as an inpatient, or the officer's medical board has been accepted by the Physical Evaluation Board for a determination of physical disability entitlement. Deferment of retirement or separation for medical reasons is governed by 10 U.S.C. 640. The CMC (MMSR) must be immediately notified by naval message of any officer in such situation(s)."

I get what Jason says from SECNAVINST 1850.4E

d. Non-misconduct/Non-UOTH administrative separations do not supersede or preclude disability separation. Consequently, final closure must occur on all disability processing/appeals prior to finalization of Non-misconduct/Non-UOTH administrative separation by field commanders/service headquarters."

And after reading Title 10 Code referrenced in the USMC Seps order it states:

(a) If the Secretary of the military department concerned determines that the evaluation of the physical condition of an officer and determination of the officer's entitlement to retirement or separation for physical disability require hospitalization or medical observation and that such hospitalization or medical observation cannot be completed with confidence in a manner consistent with the member's well being before the date on which the officer would otherwise be required to retire or be separated under this title, the Secretary may defer the retirement or separation of the officer under this title. (b) A deferral of retirement or separation under subsection (a) may not extend for more than 30 days after completion of the evaluation requiring hospitalization or medical observation.
They way I have come to understand and hence the massive confussion is: USMC says despite MEB board initiation that you may be separated unless the MEB has been submitted to PEB. SECNAV seems to differ in that despite where you are in the process if must be finalized prior to being sep'd. Title 10 mentions that medical observation must be complete which I would think MEB board processing would be meb observation and not just hospitalization.

So......the bottom line question is who is right and with HQMC stating I will be sep'd in July 2012 unless the MEB has been submitted to the PEB...is that right?


Thanks for the assistance and I can't wait to hear what you say.

Cappie
 

Frank the tank

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CDiddy,

Welcome! Medical Processing takes precedence. See AR 600-8-24:

"1–24. Referral for physical disability evaluation
If a commissioned or warrant officer is being processed for REFRAD, separation, or retirement or has been referred for elimination action, when it is determined that the officer has a medical impairment that does not meet medical retention standards, the officer will be processed as set forth in paragraphs a, through d, below.
a. A commissioned or warrant officer under investigation for an offense chargeable under the Uniform Code of Military Justice (UCMJ) that could result in dismissal or punitive discharge may not be referred for or continue
disability processing unless—
(1) The investigation ends without charges.
(2) The commander exercising proper court-martial jurisdiction dismisses the charges.
(3) The commander exercising proper court-martial jurisdiction refers the charge for trial to a court-martial that
cannot adjudge such a sentence.
b. When a commissioned or warrant officer, as applicable, is being processed for one of the actions listed in (1) through (5), below, the officer will be processed in accordance with the provisions of this regulation and through the MEB/PEB system. If the result of the physical disability evaluation is a finding of physical fitness, the Army Physical Disability Agency will approve the findings for the Secretary of the Army and forward the proceedings to CDR,
HRC–Alexandria (AHRC–OPD–A), to be processed with the other action. If a physical disability evaluation results in a finding of physical unfitness, both actions will be forwarded by CG, HRC–Alexandria (AHRC–OPD–A), to the
Secretary of the Army or his designee for determination of appropriate disposition.
(1) Referral to the DAADB except when the DAADB is convened as a result of an imposed reduction in force.
(2) Involuntary REFRAD due to civil conviction or moral turpitude.
(3) Resignation for the good of the service.
(4) Referral for elimination under chapter 4.
(5) Request for separation, resignation, or retirement in lieu of elimination.
c. When a physical disability evaluation of an officer processed for separation or retirement for the reasons indicated above results in a finding of unfitness and a recommendation that the officer be placed on the Temporary Disability
Retirement List (TDRL), the Secretary of the Army or his designee may direct that the officer be placed on the TDRL with the provision that if the officer is later removed in due course from the TDRL for disability separation or
retirement, the officer is to be retired, but if the officer is later removed in due course from the TDRL because he is found fit, the officer is to be separated from the service, effective on the date of the officer’s removal from the TDRL with a specified characterization of discharge. As in the case of an officer processed for separation or retirement for the reasons indicated above whose physical disability evaluation results in a finding of unfitness and a recommendation that the officer be separated or permanently retired, the Secretary of the Army or his designee may direct that either the separation or retirement action under this regulation or the disability action take precedence.
d. When an officer is processed for separation or retirement for reasons other than those indicated above, physical disability takes precedence if the officer is retained with consent. The procedures in paragraph 1–22 will be followed.
e. Officers previously determined physically unfit and continued on active duty under AR 635–40 must be referred for disability evaluations at final retirement or separation


Can you help with A Army administrative separation board vs a meb please

This assumes you are in the Army (if not, I will point you to your appropriate service regulation).
 

Ed Mercanti

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PEB Forum Veteran
Registered Member
Here is a better authority:

SECNAVINST 1850.4E

"3403 Disciplinary Or Misconduct Administrative Action
a. The disability statutes do not preclude disciplinary separation. Such separations as described herein normally supersede disability separation or retirement. Whenever a member is being processed through the PEB and, subsequently the member is processed for an administrative involuntary separation for misconduct, disciplinary proceedings which could result in a punitive discharge, or an unsuspended punitive discharge is pending, or is pending separation under provisions that authorize a characterization of service of Under Other Than Honorable conditions (UOTH), disability evaluation shall be suspended and
monitored by the PEB. The MEB Convening Authority should forward to the PEB either a copy of the Statement of Awareness/Letter of Notification, the court-martial charges, or the Court Martial Order, as appropriate. The PEB case will remain in suspense pending the outcome of the nondisability proceedings. If the action taken does not include punitive or administrative discharge for misconduct, the PEB will continue to process the case. If the action includes either a punitive or administrative discharge for misconduct, file the medical board report in the member's terminated health record...
d. Non-misconduct/Non-UOTH administrative separations do not supersede or preclude disability separation. Consequently, final closure must occur on all disability processing/appeals prior to finalization of Non-misconduct/Non-UOTH administrative separation by field commanders/service headquarters."
Separation of an officer for being twice passed over for promotion is a statutory separation, not administrative . . . It would appear to me that an officer would be separated for being twice non-selected for promotion unless a PEB has been initiated. An MEB would not suffice . .
 

Jason Perry

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It is technically administrative (even though there is statutory authority for it). The distinction is that the separation is not for misconduct.
 

Jason Perry

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Thought I could explain the above comment a bit better. The type of separation refers to how it is accomplished and not the authority for it. There is no "statutory" separation of individuals in this sense (i.e., Congress does not pass a law stating "SGT Smith is hereby separated). You see judicial separations (by action of Courts-Martial) or administrative separations (and both of those are covered by statutory authority...with some regulatory authority used to fill in areas where Congress may not have provided specific guidance).
 

Ed Mercanti

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If you make an "exception" to a regulatory provision, you slap your forehead and claim ignorance. Doesn't work that way with statutory provisions.

Even the BCMR is limited by law. The BCMR can do things that are not provided by law, but can't do something that is prohibited by law.

In my dealings with two-time Passovers for promotion, unless a specific provision exists to allow the retention of the officer, the officer is removed.
 

Jason Perry

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If you make an "exception" to a regulatory provision, you slap your forehead and claim ignorance. Doesn't work that way with statutory provisions.
I get what you are saying here. But, the provisions of 10 USC Chapter 61 along with the regulatory provisions of AR 600-8-24 work together to not only allow retention past point of separation for being passed over, but actually require it.

Even the BCMR is limited by law. The BCMR can do things that are not provided by law, but can't do something that is prohibited by law.
True.

In my dealings with two-time Passovers for promotion, unless a specific provision exists to allow the retention of the officer, the officer is removed.
Hard to really address this as the specifics of the case would be crucial to the analysis. But, are you talking about just straight removals or passover promotions while disability processing is pending or should have been initiated? The difference would be crucial.
 

Ed Mercanti

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Thinking back, the cases I've seen are people who had medical conditions which would very possibly be determined medically disqualifying and unfitting. I do not believe any involved soldiers who had already had an MEB dictated. As I said before, I think the break point would be the acceptance of the case by a PEB. This is supported by your cite Jason:

Except as indicated below, under no circumstances will an officer directed to separate for twice failing selection to promotion be retained beyond the mandatory discharge date:

a. Retention beyond an involuntary separation date for a commissioned officer may only be authorized by the Secretary of the Navy if an officer is
confined to a hospital as an inpatient, or the officer's medical board has been accepted by the Physical Evaluation Board for a determination of physical disability entitlement.
 

Jason Perry

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Thinking back, the cases I've seen are people who had medical conditions which would very possibly be determined medically disqualifying and unfitting. I do not believe any involved soldiers who had already had an MEB dictated. As I said before, I think the break point would be the acceptance of the case by a PEB. This is supported by your cite Jason:

Except as indicated below, under no circumstances will an officer directed to separate for twice failing selection to promotion be retained beyond the mandatory discharge date:

a. Retention beyond an involuntary separation date for a commissioned officer may only be authorized by the Secretary of the Navy if an officer is
confined to a hospital as an inpatient, or the officer's medical board has been accepted by the Physical Evaluation Board for a determination of physical disability entitlement.
Ed,

I just want to point out, though, that I think the Navy instruction is actually too restrictive. The Navy definitely takes the position that there is a somewhat "magical" significance of the PEB accepting an MEB for adjudication. I think that if it is clear that the MEB should have been initiated earlier and/or accepted by the PEB and it was in fact rejected for spurious reasons, that argument would not hold up. Though, the only venue you would get that addressed is in court.

(It really gets complicated when you have to heap error upon error to try to make your argument. But, on this point, I don't think a defense would work if it is clear that the decision to not grant relief is not based on substantial evidence).

Another point, though, is that the involuntary separation argument is a bit more burdensome/difficult to win on than the entitlement to disability retirement pay. Sometimes it makes sense to go after both remedies. Other times, it may just make sense to go after retirement pay.
 
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