Read This if You Have Been Denied LOD Initiation or Had NGB Find Your Condition NILOD!

[nomad_romad]

I need your help!!!! If you look at my prior posts on this forum you can see what I have been up against the last 3 years with my Wing/NGB/ANG. I have been fighting relentlessly along with a group of other dedicated people. These include Retired/current Fighter Pilots, TACP, and Special Tactics folks. Recently we have been making a lot of ground.

Here is where I need your help. If you have been denied LOD initiation by your Wing or Battalion, for that matter any Guardsman or Reservist in any branch, then now is your chance to be heard. Due to our efforts we have the direct ear of Lt. Gen Davis and the Honorable Mr. Storcher of the SAF IG. His office is actively seeking complaints for violations of law and policy in respect to LODs. He is personally investigating this. Also through the bro network, we have a direct line to Rep. Anna Luna. She is on the House Oversight Committee, and she is a former USAF and ANG vet. Her husband is in Special Tactics. She is opening an inquiry as well through the House Oversight Committee. Lt Gen Davis' aid has personally reached out to me to ask that more people come forward.

What I need from you is to file a Reprisal Whistleblower complaint with the DOD IG. We have argued that this corruption is NGB wide. The violations of law and policy are willful and intentional. The complaint form that I will link is a little lengthy, but this is our shot to right wrongs and injustices. In the form you add people who you have had contact with that you made aware of your conditions, or that you made aware of violations. In the next section you list what reprisal action was taken against you. In most cases the reprisal action would be willful denial of LOD initiation that denied due process as well as pay, benefits, and treatment. If NGB overruled a finalized LOD, the reprisal is the same. It is a violation of law and policy to overrule a finalized LOD. Therefore, once again denying pay, benefits, and treatment. If you appealed a NILOD finding and were not provided a reason the reprisal is arbitrary and capricious abuse of discretion.

Please, I implore you to take the time and file the complaint. If anyone has any questions or needs help, I am available. I will monitor this thread to provide assistance. NGB underestimated the determination and conviction of a bunch of Special Warfare bros, and we are finally able to take the fight to them and turn the tables.

Department of Defense Office of Inspector General > Components > Administrative Investigations > Whistleblower Reprisal Investigations > Whistleblower Reprisal

@Jason Perry

 

[DLS1369]

I was just denied a LOD appeal by NGB for Chrons due to lack Medical documents of seeing a doctor. Symptoms started in 2006 Iraq and continued till diagnosed in 17 after bring pushed by family and friends something was wrong. I just kept pushing through it. I had tons of witness statements but wasn't good enough for NGB. SO KNOW I'M NILOD facing a PEB or they said just retire. I've fought this for 3 years might as well fight it till the end.

 

[nomad_romad]

I was just denied a LOD appeal by NGB for Chrons due to lack Medical documents of seeing a doctor. Symptoms started in 2006 Iraq and continued till diagnosed in 17 after bring pushed by family and friends something was wrong. I just kept pushing through it. I had tons of witness statements but wasn't good enough for NGB. SO KNOW I'M NILOD facing a PEB or they said just retire. I've fought this for 3 years might as well fight it till the end.

Join us and file the reprisal complaint. Were you given the "clear and unmistakable evidence" used by NGB to reach their determination? Was your LOD approved as ILOD at a lower level, and then overruled by NGB? What is the name of the Medical Reviewer on your LOD that recommended NILOD? Who was your appellate authority? What reason did the appellate authority put in the appeal denial memo?

Sorry for all the questions, I am just trying to see if your case is like all the others I have seen. I have been battling IBS-C since returning from Iraq in 06 also. Have you started your VA claim yet? Luckily, the VA did service connect my IBS. Have you joined the Burn Pit Registry, and have you scheduled yourself for a Gulf War Registry Exam? If not I highly recommend that you do so.

Airborne Hazards and Open Burn Pit Registry

VA.gov | Veterans Affairs

Apply for and manage the VA benefits and services you’ve earned as a Veteran, Servicemember, or family member—like health care, disability, education, and more.

www.publichealth.va.gov

Pre-discharge claim | Veterans Affairs

If you have a service-connected condition, you can file a claim for disability benefits 180 to 90 days before you leave the military. This may help speed up the claim decision process so you can get your benefits sooner. Find out how to file a claim through the Benefits Delivery at Discharge...

www.va.gov

 

[DLS1369]

So I finally got to read the return memo and basically they are denied it at lower level due to lack of evidence. So I appealed and sent in a ton of witness statements from everyone I've served with through the years plus the doc that diagnosed me saying that the symptoms started in 06. However the NGB upheld the denial due to being past the 180 days. My biggest issue is I didn't know it was a problem I just delt with it. Now I facing a NIlOD separation. I can either retire or go to the PEB process. I've been fighting this for years at least if I go the PEB route I can fight the fight one last time. Thoughts?

 

[nomad_romad]

I'd say to fight it. 180 days is the timeline for reporting, but it is not set in stone. The AFI and DoDI specifically mention that conditions can have a late or delayed onset. Lack of evidence is not evidence. Your condition is presumed In the Line of Duty. It is the DoD's duty to overcome this presumption. This requires clear and unmistakable evidence. They have shifted the burden of evidence on you, when they own that burden. Also, if your condition was aggravated while you were in a qualified duty status it would also require a LOD.

File the Reprisal IG complaint. They denied you due process. With a NILOD unfitting condition, they are going to force you into the Non Duty Related DES. This will only be a determination of fitness, and there will be no disability rating from the DoD. You will be found unfit, and they will involuntarily separate or retire you.

 

[DLS1369]

This is the first memo they sent

 

[DLS1369]

I also included 18 witness statements along with my appeal buy I guess that wasn't any new information to The apeal board

 

[nomad_romad]

The AR they referenced is contrary to the DoDI. Your condition is presumed In the Line of Duty. Either by aggravation or as a Prior Service Condition. Each time you go on orders it is a "Term of Service." Even the AR states they must provide you with the evidence. Quoting DoDI is not evidence, it is materially stating policy. It took me less than 10 minutes to pick apart their BS memo to you. FIGHT!!!!

From the AR:
b. An injury, illness, or disease diagnosed while serving on active duty or in a duty status as outlined in AR 6388 does not mean that the injury, illness, or disease was incurred while serving on active duty or that an EPTS condition was service aggravated. An expert medical opinion from an appropriate provider is required and must address when the condition was incurred, if the condition existed prior to the current military service, and whether the condition was service aggravated (see para 4–8). If an LOD determination has been made during a period of prior military service and the same condition arises in a subsequent period of military service, the prior determination will remain unchanged unless intervening events exist.

2–4. Standards applicable to line of duty determinations
a. A Soldier’s injury, illness, disease, or death is presumed to have occurred ILD unless rebutted by the evidence.

e. Not in line of duty-EPTS-not service aggravated. This finding is made when there is clear and unmistakable evidence the member’s injury, illness, or disease EPTS and the condition has not been service aggravated. Aggravation will be determined by an appropriate military provider in accordance with DoDI 1332.18. (Annotate in remarks section of DD Form 261, NLD–EPTS–NSA). Mental soundness can only be determined by a behavioral health expert.

4–5. Legal
b. Due process rights. Formal hearings and verbatim transcripts are not required, and the Soldier has no right to cross-examine witnesses. Any rights warning must be reflected by a written acknowledgement from the Soldier, and sworn statements are preferred if possible. Prior to any individual recommending or approving any finding other than “ILD,” evidence against the Soldier must be presented to him or her as prescribed in paragraph 3–12b with appropriate time to respond. Soldiers subject to LOD investigation may seek legal advice from the servicing legal assistance office.

3–12. Formal investigation finding
b. The first time a NLD finding is being contemplated against a Soldier in an injury, illness, or disease case, at any level, the individual considering the finding (IO, appointing authority, or approving authority) will notify the Soldier in writing of the proposed NLD finding and provide a copy of any supporting documents before the approval authority makes the official NLD finding.

From DoDI 1332.18:
c. Presumptive Determinations. The determination will be presumed to be in the LOD without an investigation in the case of: (1) Disease, except as described in Paragraphs 7.6.d.(1) to 7.6.d.(6). (2) Injuries clearly incurred as a result of enemy action or attack by terrorists. (3) Injuries while a passenger in a common commercial or military carrier.

b. Presumption of Sound Condition for Members on Continuous Orders to Active Duty Specifying a Period of More Than 30 Days.
(1) The Secretaries of the Military Departments will presume Service members, including RC Service members and recalled retirees, on continuous orders to active duty specifying a period of more than 30 days, entered their current period of military service in sound condition when the disability was not noted at the time of the Service member’s entrance to the current period of active duty.
(2) The Secretaries of the Military Departments may overcome this presumption if clear and unmistakable evidence demonstrates that both the disability existed before the Service member’s entrance on their current period of active duty and the disability was not aggravated by their current period of military service. Absent such clear and unmistakable evidence, the Secretary of the Military Department concerned will conclude that the disability was incurred or aggravated during their current period of military service.
(3) The Secretary of the Military Department concerned must base a finding that the Service member’s condition was not incurred in, or aggravated by, their current period of military service on objective evidence in the record, as distinguished from personal opinion, speculation, or conjecture. When the evidence is unclear concerning whether the condition existed before their current period of military service, or if the evidence is equivocal, and the presumption of sound condition at the Service member’s entry to the current period of military service has not been rebutted, the Secretary of the Military Department concerned will find the Service member’s condition was incurred in or aggravated by military service.
(4) Hereditary or genetic disease will be evaluated to determine whether clear and unmistakable evidence demonstrates that both the disability existed before the Service member’s entrance on active duty and the disability was not aggravated by their current period of military service. However, even if the disability is determined to have been incurred before entry on their current period of active duty, any aggravation of that disease incurred during the Service member’s current period of active duty beyond that determined to be due to natural progression, will be determined to be service-aggravated.

c. Presumption of Incurrence or Aggravation in the LOD for Members on Continuous Orders to Active Duty Specifying a Period of More Than 30 Days.
(1) The Secretaries of the Military Departments will presume that diseases or injuries incurred by Service members on continuous orders to active duty, specifying a period of more than 30 days, were incurred or aggravated in the LOD unless the disease or injury was noted at time of entry into service. The Secretaries of the Military Departments may overcome the presumption that a disease or injury was incurred or aggravated in the LOD only when clear and unmistakable evidence indicates both that the disease or injury existed before their current period of military service and that the disease or injury was not aggravated by their current period of military service.
(2) Pursuant to Sections 1206a and 1207a of Title 10, U.S.C, a preexisting condition will be deemed to have been incurred while entitled to basic pay and will be considered for purposes of determining whether the disability was incurred in the LOD when:
(a) The Service member was ordered to active duty for more than 30 days (other than for training pursuant to Section 10148(a) of Title 10, U.S.C.) when the disease or injury was determined to be unfitting by the PEB;
(b) The Service member was not an RC Service member released within 30 days of their orders to active duty, in accordance with Section 1206a of Title 10, U.S.C., due to the identification of a preexisting condition not aggravated by the current call to duty;
(c) The Service member will have a career total of at least 8 years of active service and be in an active duty status at the time of separation; or
(d) The disability was not the result of intentional misconduct or willful neglect or was incurred during a period of unauthorized absence.

e. Prior Service Condition.
Any medical condition incurred or aggravated during one period of active service or authorized training in any of the Military Services that recurs, is aggravated, or otherwise causes the Service member to be unfit, should be considered incurred in the LOD, provided the origin of such condition or its current state is not due to the Service member’s misconduct or willful negligence, or progressed to unfitness as the result of intervening events when the Service member was not in a duty status.

 

[DLS1369]

Does anyone recommend a Lawyer in MN that deals with MEB/PEB that I could talk with?

 

[Provis]

Does anyone recommend a Lawyer in MN that deals with MEB/PEB that I could talk with?

You don't need a local one. My wife was stationed in MN at Fort Snelling and her IDES attorney was out of Virginia. I will send you the info directly.

 

[Ccr0011]

I was denied an LOD filing because my unit said I already had an LOD for another injury so I didn't need one. I am currently fighting them on this. My DOD retirement depends on this.

 

[DLS1369]

I'm waiting for a reply from OSC no response for 2 weeks. Contacted civilian attorney ave exchange information on my case waiting to hear back from them too

 

[nomad_romad]

I was denied an LOD filing because my unit said I already had an LOD for another injury so I didn't need one. I am currently fighting them on this. My DOD retirement depends on this.

Which branch? A new and separate LOD is required for each condition. Also, if a condition evolves a new LOD may be necessary. I can find the reference quickly if you are AF. If not I could still do some digging and find it for you if you need help with it. Let me know.

 

[Ccr0011]

Which branch? A new and separate LOD is required for each condition. Also, if a condition evolves a new LOD may be necessary. I can find the reference quickly if you are AF. If not I could still do some digging and find it for you if you need help with it. Let me know.

Army Reserves. I just contacted a civilian attorney. Here is what I said:
..."I am currently in the IDES process/medical discharge for an injury that incurred during drill. I tore some muscles in my hip, had surgery and during the surgery I developed a DVT in my leg. I have a profile for this injury and for mental health that was caused and worsened by this physical injury.

I have seen a civilian psychiatrist and psychologist for treatment for the past 1.5 years. I also saw a VA psychiatrist for my C&P exam/mental health claim. I provided my command with 3 DBQs filled out by my providers, a letter, and the assessment findings from the VA psychiatrist C&P mental health exam.

The VA rated me for my mental health and part of the physical injury (60%), however the DOD only rated my for my hip (not anything else I claimed including the DVT and mental health component), therefore, giving me a DOD rating of 10%. I appealed the ratings last month and the IDES attorney is recommending that my command fill out an LOD. My PEBLO reached out to my command and my command is requesting a medical records release document and wishes to obtain ALL treatment records from my psychologist and psychiatrist (1.5 years). The army/DOD is trying to say that my mental health condition was not caused/aggravated by them and that it was caused by my civilian career/pandemic because I wasn't seen by a military doctor about my mental health while I was on duty. However, I have brought it up to several providers in my unit and do have a mental health profile, but when I asked if I needed an LOD for mental health, they said I didn't since I already had one for my hip? I am 31 years old, walk with a limp, have chronic constant pain which I am still seeing the orthopedic surgeon for because the surgery may not have been successful, I am unable to tie my shoe/cross my legs, have to be on blood thinners for the rest of my life (I developed a blood clot in surgery for my hip). I am not sure how I feel about the military having access to all of these records and them going on my permanent file. I am just wondering why 3 DBQs from my psychiatrist and my psychologist, my assessment findings with the VA psychiatrist, and a letter from my psychologist don't suffice.

There is no doubt I have been receiving weekly care for mental health, I am just a little reluctant to have my entire mental health journey be a part of my permanent military record. Isn't there something else that we can do to prove this rather than submit over a year and a half of therapy/psychiatric documents? I have reached out to the IDES attorneys twice and I have not heard anything back and it's been about 3 weeks. My command needs me to make a decision on how to proceed...."

 

[Provis]

Army Reserves. I just contacted a civilian attorney. Here is what I said:
..."I am currently in the IDES process/medical discharge for an injury that incurred during drill. I tore some muscles in my hip, had surgery and during the surgery I developed a DVT in my leg. I have a profile for this injury and for mental health that was caused and worsened by this physical injury.

I have seen a civilian psychiatrist and psychologist for treatment for the past 1.5 years. I also saw a VA psychiatrist for my C&P exam/mental health claim. I provided my command with 3 DBQs filled out by my providers, a letter, and the assessment findings from the VA psychiatrist C&P mental health exam.

The VA rated me for my mental health and part of the physical injury (60%), however the DOD only rated my for my hip (not anything else I claimed including the DVT and mental health component), therefore, giving me a DOD rating of 10%. I appealed the ratings last month and the IDES attorney is recommending that my command fill out an LOD. My PEBLO reached out to my command and my command is requesting a medical records release document and wishes to obtain ALL treatment records from my psychologist and psychiatrist (1.5 years). The army/DOD is trying to say that my mental health condition was not caused/aggravated by them and that it was caused by my civilian career/pandemic because I wasn't seen by a military doctor about my mental health while I was on duty. However, I have brought it up to several providers in my unit and do have a mental health profile, but when I asked if I needed an LOD for mental health, they said I didn't since I already had one for my hip? I am 31 years old, walk with a limp, have chronic constant pain which I am still seeing the orthopedic surgeon for because the surgery may not have been successful, I am unable to tie my shoe/cross my legs, have to be on blood thinners for the rest of my life (I developed a blood clot in surgery for my hip). I am not sure how I feel about the military having access to all of these records and them going on my permanent file. I am just wondering why 3 DBQs from my psychiatrist and my psychologist, my assessment findings with the VA psychiatrist, and a letter from my psychologist don't suffice.

There is no doubt I have been receiving weekly care for mental health, I am just a little reluctant to have my entire mental health journey be a part of my permanent military record. Isn't there something else that we can do to prove this rather than submit over a year and a half of therapy/psychiatric documents? I have reached out to the IDES attorneys twice and I have not heard anything back and it's been about 3 weeks. My command needs me to make a decision on how to proceed...."

Request the documents yourself. Vet them and then send them directly to your command so that you bypass the military having direct access to everything.

 

[nomad_romad]

Army Reserves. I just contacted a civilian attorney. Here is what I said:
..."I am currently in the IDES process/medical discharge for an injury that incurred during drill. I tore some muscles in my hip, had surgery and during the surgery I developed a DVT in my leg. I have a profile for this injury and for mental health that was caused and worsened by this physical injury.

I have seen a civilian psychiatrist and psychologist for treatment for the past 1.5 years. I also saw a VA psychiatrist for my C&P exam/mental health claim. I provided my command with 3 DBQs filled out by my providers, a letter, and the assessment findings from the VA psychiatrist C&P mental health exam.

The VA rated me for my mental health and part of the physical injury (60%), however the DOD only rated my for my hip (not anything else I claimed including the DVT and mental health component), therefore, giving me a DOD rating of 10%. I appealed the ratings last month and the IDES attorney is recommending that my command fill out an LOD. My PEBLO reached out to my command and my command is requesting a medical records release document and wishes to obtain ALL treatment records from my psychologist and psychiatrist (1.5 years). The army/DOD is trying to say that my mental health condition was not caused/aggravated by them and that it was caused by my civilian career/pandemic because I wasn't seen by a military doctor about my mental health while I was on duty. However, I have brought it up to several providers in my unit and do have a mental health profile, but when I asked if I needed an LOD for mental health, they said I didn't since I already had one for my hip? I am 31 years old, walk with a limp, have chronic constant pain which I am still seeing the orthopedic surgeon for because the surgery may not have been successful, I am unable to tie my shoe/cross my legs, have to be on blood thinners for the rest of my life (I developed a blood clot in surgery for my hip). I am not sure how I feel about the military having access to all of these records and them going on my permanent file. I am just wondering why 3 DBQs from my psychiatrist and my psychologist, my assessment findings with the VA psychiatrist, and a letter from my psychologist don't suffice.

There is no doubt I have been receiving weekly care for mental health, I am just a little reluctant to have my entire mental health journey be a part of my permanent military record. Isn't there something else that we can do to prove this rather than submit over a year and a half of therapy/psychiatric documents? I have reached out to the IDES attorneys twice and I have not heard anything back and it's been about 3 weeks. My command needs me to make a decision on how to proceed...."

It is not a prerequisite that you submit medical notes before your command will decide whether or not they will initiate a LOD. The requirement is that an injury, illness or disease, or death occurred or was aggravated while in a qualified duty status and was reported withing 180 days of the last day of the orders. Your 25m target right now should be forcing them to initiate the LOD. Your command is not an investigatory body. They must initiate the LOD. If your Commander believes that the condition was not caused nor aggravated while in a qualified duty status, then that is their opinion. They are entitled to that opinion, but it does not change the fact that they still are mandated to initiate the LOD. If that is their belief, then there is a process to accommodate their opinion. It is called the Formal LOD process. THEY STILL MUST INITIATE THE LOD!!! The Formal LOD process is for when commanders believe the condition existed prior to service, was due to misconduct or negligence, or was not incurred in the Line of Duty. In this process is where you would be investigated, and then you and your lawyer can present your evidence.

 

[ANG_Reaper]

Air National Guard here. After submitting my LOD’s up to NGB, NGB just determined my condition as “Prior Service Condition” (PSC), not LOD. The NGB memo specifically states “…it is clear SM's condition is directly attributable to his military position which is the nexus for these medical conditions....Records clearly indicate military position resulted in the condition and the military environment contributes to and exacerbates the condition." I’m still referred into the DES, yet evidence clearly shows a LOD and not a PSC. Is it worth appealing? How will the PSC determination affect the future phases of the DES process? Will it alter a decision to medically retire me somehow? Can a PSC determination make me ineligible for CRSC?

 

[nomad_romad]

Air National Guard here. After submitting my LOD’s up to NGB, NGB just determined my condition as “Prior Service Condition” (PSC), not LOD. The NGB memo specifically states “…it is clear SM's condition is directly attributable to his military position which is the nexus for these medical conditions....Records clearly indicate military position resulted in the condition and the military environment contributes to and exacerbates the condition." I’m still referred into the DES, yet evidence clearly shows a LOD and not a PSC. Is it worth appealing? How will the PSC determination affect the future phases of the DES process? Will it alter a decision to medically retire me somehow? Can a PSC determination make me ineligible for CRSC?

Were your LOD submissions turned into PSC by Col Lisa Weeks? Do you have an ILOD determination for the conditions that they are now determining to be "PSC?" Are you being sent to the DES as a Non-Duty DES or a as a standard DES? Were you given an LOD determination for the submitted conditions in lieu of favoring a PSC? By this I mean did they give you an ILOD-EPTS determination, but told you that they will submit you as a PSC? The problem with PSC determinations is that they are final and you are not able to appeal the findings in the DES. Your only path of recourse if not found in your favor is the AF BCMR. While the portion of the PSC memo that you posted is hopeful in that it sounds like whoever wrote it agrees that your condition is ILOD, you will still be at the mercy of the IPEB and FPEB panel. All of my NILOD LODs say that all of my conditions are "PERMAMENTLY AGGRAVATED BY SERVICE," but the IPEB and FPEB still denied service connection with them. The thing that scares me about PSC is the DES can say it is natural progression and thank you for your service.

I would suggest emailing [email protected]. USJAG is an advocacy group that is actively fighting these issues. They have been in the news a lot lately, and they have helped me with my fight as well. There are active investigations within the AF happening right now over these same issues.

DAFI 36-2910, 17 NOV 2023

1.4.3. Prior Service Condition (PSC). Either for medical separation or retirement is not a LOD determination. However, the ARC LOD Determination Board is responsible for identifying and referring to the Disability Evaluation System (DES) those conditions that occurred in a prior qualified duty status and were ILOD that have now become potentially unfitting and need to be referred into the DES. (See paragraph 1.12.1).

1.6.8.6. To enter the DES for a duty-related determination, the member must have an ILOD determination for a referred condition, or meet the eight year rule (see paragraph 1.13), or have a Prior Service Condition (PSC) that meets the criteria set forth in paragraph 1.12 and DoDI 1332.18, Enclosure 3 to Appendix 3, paragraph 7.e. (T-0).

1.12. Prior Service Condition (PSC). 1.12.1. For the purpose of DES processing, a prior service condition is any medical condition incurred or aggravated during one period of active service or authorized training in any of the Military Services that recurs, is aggravated, or otherwise causes the member to be unfit, should be considered incurred in the LOD, provided the origin of such condition or its current state is not due to the service member’s misconduct or willful negligence, or progressed to unfitness as the result of intervening events when the service member was not in a duty status. (See DoDI 1332.18). Note: Intervening events can be a car accident that worsened the existing condition, a civilian job that aggravates the condition, member’s willful neglect or misconduct.

For example, if a member had an anterior cruciate ligament repair ten years during a period of active service or authorized training, and is now unfit because of the ACL failure, then that injury is considered PSC. If there was an anterior cruciate ligament repair ten years ago and the service member is now unfit because the meniscus is beyond repair that is not considered PSC. Note: Age is not an intervening event.

1.12.2. A PSC determination will be accomplished to ascertain eligibility for entrance into the applicable DES only. A PSC would entitle a member to have a Medical Evaluation Board (MEB) evaluation and be referred into the DES. If an illness, injury, or disease is not considered a PSC, then refer into non-duty DES. When there is a determination that an illness, injury, or disease is not PSC, the member may request referral to the non-duty DES. PSC determinations will go to the AFRC’S ARC LOD Determination Board or National Guard Bureau, Surgeon General (NGB/SG) for review.

1.12.3. When the appropriate authority for review is making a PSC determination, they may consider the following criteria:

1.12.3.1. The PSC should be of the same body part and same diagnosis that has caused the member to become unfit. (T-1).

1.12.3.2. PSC must be documented in the service treatment record with a medical diagnosis (not a symptom, i.e. back pain) of the original injury, disease or illness. Documentation may include an Administrative LOD, or via a LOD determination on an AF Form 348 or DD Form 261, Report of Investigation Line of Duty and Misconduct Status, or civilian documentation that correlates directly with the prior service specific condition. The medical provider renders their medical opinion of the injury, illness or disease. The medical provider makes the correlation of PSC supported by medical documentation and accepted medical practice and principles. Exceptions of documented diagnosis may be allowed when injury, illness or disease was discovered during the separation health exam and there was not sufficient time for diagnosis before member separated from current period of service. (T-1).

1.12.4. A PSC without service aggravation or recurrence will not be used for medical care and treatment, INCAP, or MEDCON and it will only allow for entrance into the applicable DES. AFRC’s ARC LOD Board or NGB/SG is the approval authority for issuing the determination associated with a PSC condition. (T-1).

1.12.5. A LOD determination (AF Form 348 and/or DD Form 261) will be required if the PSC, injury, or disease recurs or is aggravated during performance in a qualified duty. (T-1).

1.12.6. PSC decisions by AFRC’S ARC LOD Determination Board and NGB/SG are final. Any errors or injustice for PSC decisions are addressed through the Air Force Board for Correction of Military Records (AFBCMR) process only. (T-1).

2.9. Air Force Board for Correction of Military Records (AFBCMR). Acts on behalf of the Secretary of the Air Force to correct military records when it determines a member is the victim of an error or injustice. Reviews errors or injustices in PSC decisions.

DoDI 1332.18, 1- NOV 2022

e. Prior Service Condition. Any medical condition incurred or aggravated during one period of active service or authorized training in any of the Military Services that recurs, is aggravated, or otherwise causes the Service member to be unfit, should be considered incurred in the LOD, provided the origin of such condition or its current state is not due to the Service member’s misconduct or willful negligence, or progressed to unfitness as the result of intervening events when the Service member was not in a duty status.

 

[ANG_Reaper]

Thanks for your response -- to answer your questions:

Yes, the PSC determination was signed by Col Lisa Weeks in a Memorandum for Record by the National Guard Bureau. My condition was approved locally from my local command, wing, and state level as ILOD, but was deemed a PSC by NGB after nearly 15 months of waiting to hear back.. My med squadron was just as surprised as I was to see it was determined to be a PSC. As soon as my condition was determined to be a PSC and not ILOD, I was immediately removed from MEDCON orders... free TRICARE for my family and I gone. No income, no benefits. I'm being sent to the standard DES -- there was no mention of non-duty DES in the NGB PSC MFR. Not sure about ILOD-EPTS -- no mention of that in the MFR.

My local med squadron is supportive. They filed another LOD for a different injury I had recently to help me and my family get back on MEDCON which was recently APPROVED and will begin in a couple days. So now I'm going back on MEDCON -- would appealing the PSC with the AF BCMR be worthwhile?

This PSC business and removal of MEDCON orders is such a headache. I reached out to my state senators and congress with not much response. Thanks again for the advice.

 

[nomad_romad]

Thanks for your response -- to answer your questions:

Yes, the PSC determination was signed by Col Lisa Weeks in a Memorandum for Record by the National Guard Bureau. My condition was approved locally from my local command, wing, and state level as ILOD, but was deemed a PSC by NGB after nearly 15 months of waiting to hear back.. My med squadron was just as surprised as I was to see it was determined to be a PSC. As soon as my condition was determined to be a PSC and not ILOD, I was immediately removed from MEDCON orders... free TRICARE for my family and I gone. No income, no benefits. I'm being sent to the standard DES -- there was no mention of non-duty DES in the NGB PSC MFR. Not sure about ILOD-EPTS -- no mention of that in the MFR.

My local med squadron is supportive. They filed another LOD for a different injury I had recently to help me and my family get back on MEDCON which was recently APPROVED and will begin in a couple days. So now I'm going back on MEDCON -- would appealing the PSC with the AF BCMR be worthwhile?

This PSC business and removal of MEDCON orders is such a headache. I reached out to my state senators and congress with not much response. Thanks again for the advice.

This is the track record of the ARC LOD Determination Board at NGB. You are not the only one that Col Lisa Weeks has done this to. They overturn finalized ILOD determinations and make them PSC. You are unable to appeal a PSC determination and whatever they decide is final. You are also not authorized to be on MEDCON for a PSC submission. They will never provide you with the evidence that they used to make their determination. As you have seen they will use phrases like "clearly indicate" without providing a shred of evidence. In the end the DES may find the PSC as ILOD, but what they are doing to you is denying you the care and benefits that come along with being on MEDCON. Point blank they are making these determinations for budgetary reasons and they are not following law under 10 U.S.C.

Look up the name "Lt Col Carrie A Barido and Air University." Then read her Air War College Research paper on reforming the LOD and MEDCON process. She states that Guard/Reserve members are being unintendedly monetarily incentivized to claim injuries and remain on MEDCON. She states that we are a burden to taxpayers. She now works at ANGRC under the LOD Appellate Authority. This is purely a money move to deny you benefits, and it is not based on actual evidence or medical practices.

At this point the process will happen to you. IG investigations take forever, and as you have found out Congress could care less. Your representative will probably do what mine has done, and that is just submit an inquiry and accept whatever they receive back. The IG has been investigating my allegations for over 2 years now, but they are quickly churning out closure memos that find my allegations "Not Substantiated." They are doing this to force me out. You will most likely be separated long before the IG does anything. You will also most likely have to wait to submit an AF BCMR until the DES is finalized. I submitted one prior to my DES being finalized and they just closed it out and told me to resubmit once all investigations are completed.

Just know though that the Director of AFBRA, Dr. Gerald Curry, owns both the DES processes and the AF BCMR. His staff rotates between sitting on the IPEB, FPEB, FPEB Appeal, and the AF BCMR. They say the AF BCMR is unbiased, but it is the SAME STAFF. In my case, Dr. Curry personally denied my DES case. So now I have to wait until they force the retirement on me to resubmit my AF BCMR back to Dr. Curry. Make it make sense.

If I were in your shoes, I would demand the evidence that they used to reach the PSC determination. I would continue to engage with your representative as well as with the IG office, specifically the DOD IG Hotline and SAF IG. Those 2 IG offices are up to their eyes in complaints with people in our same shoes. Local IG will get you now where. It is good that you have a supportive chain. I would keep them in the know as well.