Which one? Board of corrections or PBDR?

needhelppeb

PEB Forum Veteran
Registered Member
#1
Hello. I have been contemplating submitting a correction due to errors in my PEB case.

I thought I was going to go to ABCMR first because I understood that if you go PDBR, it is final.

My understanding is that if you go PBDR first, it is final and you cannot apply to ABCMR.

My understanding is also that if you go ABCMR first, and get a denial, you still had an opportunity to go PBDR.

However, I came across a board result today that blew my mind. "a. She previously submitted an application to the ABCMR and her case was denied on 17 April 2012. Since she elected to petition the ABCMR vice the DOD Physical Disability Board of Review (PDBR) at the time, once her case was adjudicated by the ABCMR she was no longer entitled to a PDBR review."

IN THE CASE OF:

BOARD DATE: 4 September 2014

DOCKET NUMBER: AR20140014068


I'm very confused now.

Where is the regulation that says if you go ABCMR first, you are not entitled to PDBR?

Thank you for your time.
 

jeeperrs

Registered Member
#2
I personally had a similar issue. I filed to the PDBR and was declined. The decision was final and you cannot appeal. I then had new evidence come forward and filed to the ABCMR several years later. At first the ABCMR would not take the case. I had to be very clear in the difference between my PDBR case and the ABCMR. I am now at the two year waiting period for a decision at the ABCMR. The thing I like about the ABCMR is the board is not necessarily military people. All three of the PDBR were active duty personnel. The ABCMR also lets you appeal if you get new material after their decision. However, if you don't win at the ABCMR or PDBR you can go to federal court. I would say it is best to go to Federal Court instead of the second military route, as they will cite the previous board decision as evidence against you (the ABCMR cited the PDBR in their advisory opinion with my current case). Timelines are taking 2-3 years for a decision either route. At least the Federal Court will move a bit faster and you have a real shot of winning before you are dead. LOL.
 

needhelppeb

PEB Forum Veteran
Registered Member
#3
Hi, thanks for your reply. Just a few thoughts on what you told me:

I would consider contacting your congressperson about your case. BCMR regulations state:

Under 14 U.S.C. § 425, the Board’s recommended decision becomes final if the delegate of the Secretary does not take final action within the 10-month deadline.

The ABCMR has some required timelines, and it sounds like yours has gone well over that. I have no idea if this really applies to you, and i am not a lawyer. However, if I were you I would look into it.
 

needhelppeb

PEB Forum Veteran
Registered Member
#5
Decision Timeliness—14 U.S.C. § 425Final action must be taken within 10 months of receipt of a “completed application.” If not,● any recommended decision of the Board that is awaiting review by the delegate of the Secretary becomes final agency action; or● the applicant is entitled to (1) a court order directing that final action be taken within 30 days and (2) the costs of obtaining the order, including a reasonable attorney's fee, from the Department.33 C.F.R. § 52.26 in effect tolls the 10-month deadline—● if the Chair grants the applicant an extension to seek counsel or additional evidence or to reply to the Coast Guard’s advisory opinion● if the applicant significantly amends the request for relief or submits significant new evidence after the case has been docketed; or● if the Chair finds that the applicant has unreasonably delayed responding to a request for further information or evidence.
 

jeeperrs

Registered Member
#6
I have not heard of anyone being successful for the 18 month decision regulation. I choose to fight the fights I am going to win. :)
 
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