How Do I Rebut The "Presumption of Fitness?"

Bomb Dropper

Bomb Dropper

PEB Forum Regular Member
Registered Member
The Deployment Availability Working Group (DAWG) recently sent my medical summary to the Medical Standards Branch at Randolph to determine if an MEB is warranted for my conditions. Medical Standards Branch said that an MEB was not warranted based on the "presumption of fitness," as I already had an established retirement date. I know that both the DoDI and AFI state that the presumption may be overcome in three specific circumstances. I would prefer a medical retirement.

Since being med-evaced back from Afghanistan in 2011, I have been unable to do my primary job as an Air Liaison Officer. I have been on continuous physical profiles, been non-deployable and performing administrative duties in my unit. Last year, I lost my flight medical clearance and ground-based controller medical clearance. It seems to me that my chronic conditions have prevented me from doing my primary job prior to entering the "presumptive period" and should overcome the "presumption of fitness."

How do I rebut the "presumption of fitness?" The local PEBLO says that I cannot challenge the Medical Standards Branch decision. He indicated that one can only appeal an IPEB or PEB decision. It seems that if the Medical Standards Branch uses a rebuttable presumption, then I should somehow be able to rebut it!
Again, I would prefer to get an MEB and potential medical retirement. Appreciate any advice.
 
The disability system was implemented to compensate soldiers for the loss of a career. Otherwise, we would only need the VA (which is the way it was until right after WWII). Once you have an approved retirement date, what career are you trying to be compensated for? The exceptions come from when an acute or grave injury or illness is suffered/diagnosed after you submit your request for retirement. Major car accident. Stage IV cancer . . .
 
Ed Mercanti said:
The disability system was implemented to compensate soldiers for the loss of a career. Otherwise, we would only need the VA (which is the way it was until right after WWII). Once you have an approved retirement date, what career are you trying to be compensated for? The exceptions come from when an acute or grave injury or illness is suffered/diagnosed after you submit your request for retirement. Major car accident. Stage IV cancer . . .
Click to expand...
Ed, you are right about serious injuries or illness after submitting a request for retirement. One of the OTHER exceptions is for chronic conditions that precluded the member from perming his duties prior to establishing a retirement date. It appears to be an exception in cases where the member should have been MEB'd prior to the "presumptive period", but was not. If the Dod and AF regulations state that the presumption is rebuttable, how does one do that with the Medical Standards Branch?
 
I don't recall that exception on a retirement presumption of fitness. You may want to check the regulation.
 
The Medical Standards Branch at Randolph does not apply the Presumption of Fitness, that's a determination for the PEB. You may want to consult with an attorney on this issue. Visit either the local legal assistance attorney, or discuss with a civilian attorney who understands the IDES process. Good luck.
 
g. Overcoming the presumption: The Presumption of Fitness Rule is a rebuttable presumption that is overcome if the preponderance of evidence establishes the circumstances described below per DoD Instruction 1332.38.

(1) Acute, grave illness or injury: Within the presumptive period an acute, grave illness or injury occurs that would prevent the member from performing further duty if he or she were not retiring; or
(2) Deterioration of a chronic condition: Within the presumptive period a serious deterioration of a previously diagnosed condition, to include a chronic condition, occurs and the deterioration would preclude further duty if the member were not retiring; or
(3) Inadequate duty performance: The condition for which the member is referred is a chronic condition, and a preponderance of evidence establishes that the member was not performing duties befitting his or her experience in the office, grade, rank, or rating before entering the presumptive period.

My guess: They simply saw the condition, saw when it first started, and said no. You need to make sure they get evidence showing how it became worse and hence fall under the MEB guidance. I.e. respond to them with how the deterioration cause the loss of flight status, etc.

As a note, there are few scenarios where a disability retirement will actually increase your compensation.

I disagree about it being a PEB issue. MEB decides if you meet retention standards, and they could use these rules to say, yes, you can pull your retirement packet and continue to serve.
 
scoutCC said:
g. Overcoming the presumption: The Presumption of Fitness Rule is a rebuttable presumption that is overcome if the preponderance of evidence establishes the circumstances described below per DoD Instruction 1332.38.

(1) Acute, grave illness or injury: Within the presumptive period an acute, grave illness or injury occurs that would prevent the member from performing further duty if he or she were not retiring; or
(2) Deterioration of a chronic condition: Within the presumptive period a serious deterioration of a previously diagnosed condition, to include a chronic condition, occurs and the deterioration would preclude further duty if the member were not retiring; or
(3) Inadequate duty performance: The condition for which the member is referred is a chronic condition, and a preponderance of evidence establishes that the member was not performing duties befitting his or her experience in the office, grade, rank, or rating before entering the presumptive period.

My guess: They simply saw the condition, saw when it first started, and said no. You need to make sure they get evidence showing how it became worse and hence fall under the MEB guidance. I.e. respond to them with how the deterioration cause the loss of flight status, etc.

As a note, there are few scenarios where a disability retirement will actually increase your compensation.

I disagree about it being a PEB issue. MEB decides if you meet retention standards, and they could use these rules to say, yes, you can pull your retirement packet and continue to serve.
Click to expand...
Interesting! I wasn't aware of the inadequate duty performance clause. I would imagine you'd have to show you couldn't work within the scope of your occupational specialty with profile restrictions prior to the presumptive period. Thanks for your input ScottCC!
 
DoDI 1332.18 cancelled DoDI 1332.38- but, the rule remains the same in DoDI 1332.18:

"5. PRESUMPTION OF FITNESS
a. Application. The DES compensates disabilities when they cause or contribute to career termination. Service members who are pending retirement at the time they are referred for disability evaluation are presumed fit for military service.
(1) Service members may overcome this presumption by presenting a preponderance of evidence that he or she is unfit for military service. The presumption of fitness may be overcome when:
(a) An illness or injury occurs within the presumptive period that would prevent the Service member from performing further duty if they were not retiring.
(b) A serious deterioration of a previously diagnosed condition, including a chronic one, occurs within the presumptive period, and the deterioration would preclude further duty if the Service member were not retiring.
(c) The condition for which the Service member is referred is a chronic condition and a preponderance of evidence establishes that the Service member was not performing duties befitting either his or her experience in the office, grade, rank, or rating before entering the presumptive period because of the condition."


APPENDIX 2 TO ENCLOSURE 3
 
Appreciate the great advice from all. Now trying to figure out the proper procedure to get the rebuttal evidence to Medical Standards Branch. The appeal process seems easier if your case is already at the PEB!!!
 
AFI 41-210 is not much help, but here is what it states:


".53.1. DPAMM pre-IDES Screening and Adjudication of Initial RILOs:
4.53.1.1. Following DAWG review of an Initial RILO, cases classified per 4.52.5.1 and
4.52.5.2 are forwarded to DPAMM for adjudication. Adjudication disposition shall be
forwarded to the base PEBLO via the AFPC/FL 4.
4.53.1.2. The disposition by DPAMM is final and has the same effect and authority as a
MEB. Dispositions are:
4.53.1.2.1. Return to Duty (with/without an Assignment Limitation Code) and
remove AAC 37.
4.53.1.2.2. Direct an MEB and maintain AAC 37.
4.53.1.2.3. Direct an MEB at another MTF and maintain AAC 37.
4.53.1.2.4. Returned without Action (reason and disposition of AAC 37 will be
specified).
4.53.1.2.5. Continued Military Medical Observation and Care and maintain AAC 37.

4.53.1.4. Presumption of Fitness. For those with an approved retirement date within the
next 12 months, the ―Presumption of Fitness‖ policy may be applied to a case decision
during the DPAMM RILO adjudication process, resulting in a RTD decision without a
full MEB. Presumption of fitness applies to retirement, not to separation of members who
are not eligible for retirement. Refer to DoDI 1332.38, Paragraph E3.P3.5.1. and AFI 36-
3212, Paragraph 3.17. for additional information.

4.53.1.5. Only DPAMM, ARC/SGP, AFPC/DPSD (IPEB and Formal Board), and the
SECAF may invoke Presumption of Fitness. MTF providers, the DAWG and MTF MEB
members are prohibited from using or claiming Presumption of Fitness to deny a SM
MEB consideration."
(I added the bold, in the section above).

I don't know that you would have much luck with this (and, I would think pursuing this would depend on the evidence available- especially that which was not forwarded with the RILO packet and that which strongly shows that you overcome the presumption) but, it seems to me you could submit a memo to DPAMM. It does not seem to be provided for in the regulation, but, then again, nothing says you can't. All they can do is say no again. (However, it may piss some folks off if you do this).

Most likely route to challenge such a "final" decision is to appeal to Air Force Board for Correction of Military Records.
 
Ok, from what JAG told me is that as an officer I may not be able to do my job as a nurse but I can do administration therefore the MEB could say i meet job requirements. I think that is were their coming from. You can do other jobs within your grade. Plus if your within a year of retirement they consider you to be fit because if you had problems you should have started the MEB. That's another reason to deny.
 
Jason Perry said:
AFI 41-201 is not much help, but here is what it states:


".53.1. DPAMM pre-IDES Screening and Adjudication of Initial RILOs:
4.53.1.1. Following DAWG review of an Initial RILO, cases classified per 4.52.5.1 and
4.52.5.2 are forwarded to DPAMM for adjudication. Adjudication disposition shall be
forwarded to the base PEBLO via the AFPC/FL 4.
4.53.1.2. The disposition by DPAMM is final and has the same effect and authority as a
MEB. Dispositions are:
4.53.1.2.1. Return to Duty (with/without an Assignment Limitation Code) and
remove AAC 37.
4.53.1.2.2. Direct an MEB and maintain AAC 37.
4.53.1.2.3. Direct an MEB at another MTF and maintain AAC 37.
4.53.1.2.4. Returned without Action (reason and disposition of AAC 37 will be
specified).
4.53.1.2.5. Continued Military Medical Observation and Care and maintain AAC 37.

4.53.1.4. Presumption of Fitness. For those with an approved retirement date within the
next 12 months, the ―Presumption of Fitness‖ policy may be applied to a case decision
during the DPAMM RILO adjudication process, resulting in a RTD decision without a
full MEB. Presumption of fitness applies to retirement, not to separation of members who
are not eligible for retirement. Refer to DoDI 1332.38, Paragraph E3.P3.5.1. and AFI 36-
3212, Paragraph 3.17. for additional information.

4.53.1.5. Only DPAMM, ARC/SGP, AFPC/DPSD (IPEB and Formal Board), and the
SECAF may invoke Presumption of Fitness. MTF providers, the DAWG and MTF MEB
members are prohibited from using or claiming Presumption of Fitness to deny a SM
MEB consideration."
(I added the bold, in the section above).

I don't know that you would have much luck with this (and, I would think pursuing this would depend on the evidence available- especially that which was not forwarded with the RILO packet and that which strongly shows that you overcome the presumption) but, it seems to me you could submit a memo to DPAMM. It does not seem to be provided for in the regulation, but, then again, nothing says you can't. All they can do is say no again. (However, it may piss some folks off if you do this).

Most likely route to challenge such a "final" decision is to appeal to Air Force Board for Correction of Military Records.
Click to expand...
Thanks Jason. I will just send a memo and all of the evidence that I was "was not performing duties befitting (my) experience in the office, grade, rank, or rating before entering the presumptive period because of the condition." You are right that the regs don't seem to provide for it, but as you say, nothing says you can't! Seems that if DPAMM uses the rebuttable "presumption of fitness," I should be able to rebut it. AFBCMR is always an option if all else fails. Thanks again.
 
"presumption of fitness" I've been fitting that for about 4 months now. I started to gain traction although I'm not separating nor retiring yet. It's amazing how hard people fight to say "No" even when it doesn't involve them in the end.
 
Jason - As you correctly pointed out the bottom-line here is that MEB is overstepping their boundaries by invoking the Presumption of Fitness doctrine, regardless of whether it has been correctly applied or not. If a service member is unable to perform the duties befitting of their office, grade, rank, or rate the case should be submitted to the PEB for proper determination. Anything short is a usurpation of power.

Bomb Dropper - If the medical/performance facts of your case dictate referral to the PEB, you should be referred there. As a service member you have other options for appeal besides a memo to the DAWG, such as an Article 138, UCMJ to the MTF Commander. Don't short-change all the options that are at your disposal.
 
I am going through something similar. Let me throw this one out: my I/RILO came back as Return to Duty, due to my commander stating for the record my disorders have "no impact" on my duty performance. My diagnoses include seizures, dissociative amnesia, chronic kidney disease stage 3, dep/anx.

My duty performance has been less than stellar since these disorders began: UIF, Referral OPR, LOR, LOC...resulting in my AGR orders being curtailed on 1 Apr 15 (2 years premature), multiple hospitalizations, military personnel coming to my house to check on me at all times (weekends and evenings included). The list goes on.

The commander has provided false statements in his letter to AFPC/DPANM. Further, I had previously filed an IG complaint for abuse of authority + reprisal against this commander a few months back, and have requested redress (Article 138) on several issues pertaining to my health, which he denied. What can I do? I have spoken to my PEBLO and she said there isn't anything that can be done wih DPANM, as they are the final authority, but ...really? When it is my commander/supervisor who I have 1)filed a previous complaint against 2) told me the BCMR is the way I should go about getting an MEB and 3) thinks I am faking my disorders/diseases so I can stay home and drink. IG said they are going to open up an investigation into reprisal for this latest complaint.... is there anything working in my favor?
 
Bomb Dropper said:
The Deployment Availability Working Group (DAWG) recently sent my medical summary to the Medical Standards Branch at Randolph to determine if an MEB is warranted for my conditions. Medical Standards Branch said that an MEB was not warranted based on the "presumption of fitness," as I already had an established retirement date. I know that both the DoDI and AFI state that the presumption may be overcome in three specific circumstances. I would prefer a medical retirement.

Since being med-evaced back from Afghanistan in 2011, I have been unable to do my primary job as an Air Liaison Officer. I have been on continuous physical profiles, been non-deployable and performing administrative duties in my unit. Last year, I lost my flight medical clearance and ground-based controller medical clearance. It seems to me that my chronic conditions have prevented me from doing my primary job prior to entering the "presumptive period" and should overcome the "presumption of fitness."

How do I rebut the "presumption of fitness?" The local PEBLO says that I cannot challenge the Medical Standards Branch decision. He indicated that one can only appeal an IPEB or PEB decision. It seems that if the Medical Standards Branch uses a rebuttable presumption, then I should somehow be able to rebut it!
Again, I would prefer to get an MEB and potential medical retirement. Appreciate any advice.
Click to expand...

So I see an opportunity for all of you to educate me. I've never looked into this as I have no need. But as all of you are talking, I'm wondering why you want to be medically retired Bomb Dropper. Aren't you screwing yourself out of CRDP? What would be the benefit of a medical vs. regular retirement?
 
I could legally serve for another three years before mandatory retirement, except that I can no longer physically do the job. A medical retirement potentially could offer more retirement pay. You get the higher of your years of service or the disability rating the military gives you. If you had 20 years of service and were disability-rated by the military at 70%, you would get 70% of your base pay instead of 50% based on your years. Potentially, a medical retirement can be tax-free if your disabilities are combat-related, which some of mine are. Also, there are benefits for employment in Civil Service. Normally, if you retire from the military, you cannot apply your military time for a Civil Service retirement. It is possible to do that if you are medically retired. I have also heard that medical retirements cannot be divided by the courts in a divorce situation. If you are under 20 years and medically retired, you would lose CRDP, as I understand it. As I already have 20 years of active-duty, I wouldn't lose eligibility for CRDP. The benefits of a medical retirement depend on your individual circumstances, but if you have 20 years of service, and qualify, you may get better benefits with no real downside.
 
You must log in or register to reply here.
Top