Question Regarding Dual Processing Misconduct and Medical Separation

TopChop

PEB Forum Regular Member
Registered Member
Hello Everyone,

I have followed these forums for about 6 months as I went through the PEB process myself. Thank you for all of your amazing support on here.

I am currently going through my process and have a few questions regarding my situation. I am wondering if anyone has any insight or similar cases that they maybe could shine some light from.

I am a Navy Officer. I currently have a final IDES decision from the IPEB. I was found UNFIT in April 2020 and the decision was for Medical Separation (10% DOD and 60% VA). The final decision was approved/INDEXED in April as well. Then, in July before my final separation date, I was told that my Medical Sep was being held and that Navy PERS was initiating ADSEP processing against me via "Notification Procedures" - as I am a probationary officer this would be a General Characterization of Service. The ADSEP is for Misconduct from 2017 that was adjudicated in Feb 2019 - there was no punitive discharge awarded, but now they decided to initiate "Show Cause" processing.

From reading the SECNAV Manual 1850-1 (Paragraph 9 (c)), it states that for administrative discharges intervention can happen BEFORE the DES process is complete. (I thought that the Index means the DES process is complete.) Regardless, the ASN (M&RA) is the final separation authority for officers.

According to PERS, the two packets will go up to the Assistant Secretary of the Navy (M&RA) for a final decision - either medical separation or misconduct - general. I have drafted a letter than I intend to submit as my response to the "notification of adsep".

Primary Questions:

Does anyone else has a similar experience on how these processes play out?
Is this normal and legal in these cases?
What is the best angle to take in the letter to ASN to try to achieve a favorable decision of Medical Sep?

Timeline of Everything Combined:
Minor Misconduct Adjudicated: FEB 2019
Referred to IDES: NOV 2019
PEB Finding UNFIT/INDEXED: APR 2020
ADSEP Notification: AUG 2020

Any other insight is always appreciated. THANK YOU!
 
Have you obtained legal counsel? If so listen to your counsel. If not, consider doing so ASAP.
 
Have you obtained legal counsel? If so listen to your counsel. If not, consider doing so ASAP.
Thanks for the response. I have gone to the free JAG defense counsel, but they are not helpful at all. They say the situation is “unique” and they don’t have experience. So, I’ve taken research into my own hands and worked on drafting a letter as my response. I just wondered if anyone else had insight into the process or personal experience to share.

It seems wrong, so I want to battle it if I have a chance.

Thanks!
 
Please search "dual chapter" in the search box on the forum you will see a lot similar situations.
 
Please search "dual chapter" in the search box on the forum you will see a lot similar situations.
Thanks! I did search and read some. I didn’t see many with final resolutions posted or details of how they got relief. — I also know the instructions changed as of late 2019.
 
PEBLAWYER.COM
 
Correct for some reason they dont update us. Nonetheless, let me be clear when they pull this stunt the intention is meant to screw you over. That's why retaining competent counsel is very important. I know you may not want to burn bridges but your career is already at an end start demanding representation if jag won't help start requesting open-door policy for higher commanders until it does happen.
 
Correct for some reason they dont update us. Nonetheless, let me be clear when they pull this stunt the intention is meant to screw you over. That's why retaining competent counsel is very important. I know you may not want to burn bridges but your career is already at an end start demanding representation if jag won't help start requesting open-door policy for higher commanders until it does happen.
Appreciate the insight @oddpedestrian ! I have done a lot of reaching out lately... There seems to be confusion from most people. My IDES JAG/Counsel says they "don't have experience with it" and to reach out to Defense services. (My opinion is that it is more of a disability legal issues to fight for...) Defense JAG services don't have a clue unfortunately. It seems like the easy way here is to just process the Medical, but PERS is stubborn of course and charging along. General vs. Honorable (Medical) is almost equal - I get that... it's just the principle of it.

I am also assuming I would have to redo all of the VA C&P exams again if discharged outside of the IDES process. I hope that wouldn't change the ratings process if that is the case. It is crazy to be blindsided like this, after everything was complete and this was unexpected. Appreciate all the help on here!
 
This is not that unusual. You have described the situation correctly. The med sep and admin sep actions run parallel. A final decision is not made on either until both processes are complete and then it goes to the Secretary or delegee to determine which separation will be approved. It really depends on the misconduct, but anecdotal evidence indicates a preference for medical separation.
 
This is not that unusual. You have described the situation correctly. The med sep and admin sep actions run parallel. A final decision is not made on either until both processes are complete and then it goes to the Secretary or delegee to determine which separation will be approved. It really depends on the misconduct, but anecdotal evidence indicates a preference for medical separation.
@Chalk22 Thanks for the insight. I figured as much, it just seems like most JAGs offered by the military aren’t as familiar. My intention is to write a short personal statement asking for Medical Sep (which PEB finalized) and hope for the best. I’m wondering what the timeline looks like though...

Thanks again!
 
I don‘t know about the Navy, but for the Army the entire process can take a long time. Your case shouldn‘t take too long since it’s going through Notification procedures rather than Board procedures. It doesn’t need to go through the Board of Review.
 
Question: Does anyone have a recommendation for legal assistance that could review my drafted letter, prior to submission to ASN?
I already emailed Jason Perry, but I am not sure if he is available. Thank you!!
 
I actually went through this myself. I highly recommend hiring a civilian attorney who specializes in military law/defense. You can be represented at an ADSEP board by both JAG and a civilian attorney. Typically, the SECNAV is also involved but ONLY if you are being found unfit for duty due to PTSD or other mental health problems.

-Alex
 
Question: Does anyone have a recommendation for legal assistance that could review my drafted letter, prior to submission to ASN?
I already emailed Jason Perry, but I am not sure if he is available. Thank you!!
Did you email Jason at PEBLAWYER.COM or on this site. If you are seeking legal representation, please use is business site.
 
Received my "Notification" for initiation of administrative separation, as a probationary officer, this week. Intention is to just submit a "qualified resignation" in lieu of ADSEP processing this week. I am not entitled to a BOI, unless they reversed course after an OTH, which would be horrible and could always happen if I don't just submit the resignation.
This way, the resignation says it would be for a "General (Under Honorable Conditions)" characterization. I will submit a statement, with my resignation, still asking for the medical discharge (via the PEB IDES from earlier this year).

I am hoping that they read the letter and look at both cases still and decide between the two - at the ASN (M&RA) level.

If not, and they take the resignation for "General", does anyone know what the process would be for the VA benefits? Would I still be eligible? Would I have to reapply again?
I see no "bar to benefits" listed that applies here... but figured I would see if anyone has personal experience or insight. This is upsetting to say the least... but I am ready to move on with life and take care of myself.

Thanks again for all of your input.
 
Only downside I see is a lot of officers realize they got railroaded and request a BCMR appeal years later. The BCMR is incredibly ruthless with officers requesting relief always holding you too much a higher standard than your enlisted counterparts. They also nail you with "you knew your rights at the time but opted to resign anyway" knowing full well officers do this when there are no other viable options.

You have to start your VA claims all over again see if it's possible to do a BDD claim now try to get in touch with a VSO rep asap to explore your options.
 
Only downside I see is a lot of officers realize they got railroaded and request a BCMR appeal years later. The BCMR is incredibly ruthless with officers requesting relief always holding you too much a higher standard than your enlisted counterparts. They also nail you with "you knew your rights at the time but opted to resign anyway" knowing full well officers do this when there are no other viable options.

You have to start your VA claims all over again see if it's possible to do a BDD claim now try to get in touch with a VSO rep asap to explore your options.
Really appreciate the reply. I figured the BCMR would be that way... which sucks. The risk is high to not resign at the offered discharge though and possibly just get pushed into an OTH. At least with the General I can still get all the same VA Benefits I would have had through IDES (minus GI Bill). Unless I am missing something... is that pretty much true?

And for the BDD, I did just look into that. Sounds like I need a "separation date" before filing... But definitely will get on the claim as soon as I get some notification.

Thanks again! This makes me feel better... sometimes I just feel alone in this, but need to remember that other people have gone through it too.
 
Hey everyone, I wanted to follow-up on my original post form August. (And thank you to @oddpedestrian for the prior help!)

As of this week, I finally received a final decision from my Dual Processing package that went to ASN.
They signed off on an ADSEP instead, no comments or anything... simply just concurred with Navy PERS.

Anyways, final decision is to separate with General (under honorable conditions) discharge for the prior misconduct from 3 years ago. Disappointed, but relieved since I have been in the IDES process for over a year.

My question is: Are there any bars to the VA benefits with this type of discharge (General (UHC))?
Also, from my reading, I couldn’t find any reason with there being any issues with benefits - except just GI Bill. It seems like the only bars that apply to General discharges are very specific “statutory bars”. I just wanted to be sure because I was nervous when I read that there are various regulatory/statutory bars that exist.

Really appreciate all of your help. Thank you again!
 
No bar to claiming VA disability benefits see if you can go ahead and file a BDD claim before discharge.
 
@oddpedestrian Thank you for the reassurance on my research! Definitely a relief to my nerves.

I actually just filed a new claim for everything earlier this week and submitted all of my paperwork. I am assuming they wait to process until after a discharge, but it says it is in the “evidence gathering” phase now.

Hoping for a smooth transition. Thanks again.
 
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