PEB found “fit for duty” because I am a physician

just received my DA 199 today and was disappointed (but not surprised) that the informal PEB decided to find me fit for duty. I am in a somewhat unique situation because I am a doctor in the army, and they will do almost anything to retain doctors in order to avoid “losing” out on their investment.

My MEB/NARSUM said I didn’t meet retention standards. I was sent to the PEB having multiple people tell me not to expect an unfit ruling because of my job. The PEB asked for a statement of fitness- which they were assuming would be from my hospital supervisor stating that I can continue to work despite my condition. I got a memo from my company commander (not hospital supervisor, but in my direct chain of command for my actual assignment) that said I was not fit for that assignment and that he recommended medical separation to allow the unit to replace me with a squadron surgeon that is deployable to facilitate readiness. As of now I am my units only doc so if they were called for deployment they would either not be able to go or would have to pull another physician to backfill. I am useless to my unit now that I have a permanent profile and will be indefinitely nondeployable.

My condition is for thoracic back pain, which was caused when I had to go to NTC. Through my workup I was found to have both scoliosis and scheurmanns disease (kyphosis). I have a p3 profile and even if found fit for duty I will be nondeployable and unable to do any operational training rotations.

I want to appeal and hope to separate because I am frustrated that the army is now treating me as “just a doctor” who can work in a hospital, even though they did not offer me any special precautions and had no qualms about sending me to NTC, where I was injured. Further, the PEB listed my AOC (MOS essentially) as 60P because I am a pediatrician. This is not technically accurate because my orders have me listed as a 62B (squadron surgeon) and I just work as a pediatrician when I am not involved in any requirements for my unit. They are claiming that the deployment limitation is not a factor in my case because I am a medical officer so I can still be found fit for duty. I could understand/accept this decision if I had been granted an assignment as a 60P only, but do not feel it is fair that I was given the assignment with all the responsibilities and expectations of a squadron surgeon/deployable asset before my injury but now am not being evaluated through the PEB in the same lens.

I plan to appeal but if anyone has any advice on the appeal process or specific wording/documentation that could support my request to appeal the decision and be granted medical separation, that would be much appreciated. I haven’t signed the DA199 yet and have an appointment to discuss my options with my PEBLO tomorrow at noon.

Thanks in advance!

 

[snaketorres]

I'm curious to hear what your PEBLO tells you. I am also a physician (AD Army) going through the process and have been told the same thing. "If you have credentials and a pulse, you fit for duty". From other colleagues of mine who have gone through this in the past, the common thread is to get professional representation if you decide to go for a FPEB. Keep us updated on your process.

 

[CAnsley]

I just received notification from the PEB as well saying Fit For Duty. I'm appealing as well, I am unable to do any Army stuff do to my P3 profile. I'm Artillery but currently in a ROTC slot at the moment. According to the board I can go back to the big Army, even though I can't deploy, can't take a PT test, Can't stand for more then 30 minutes.

 

[Lawyers Serving Warriors™]

NVLSP currently has a lawsuit against the Navy on this issue. If interested in pro bono assistance, apply here: https://nvlsp.secure.force.com/WhatWeDo/

 

[Helpcat]

I’m in a similar situation. Not an officer but enlisted Air Force . Was meb for anxiety and MDD. I have an approved date of separation through voluntary separation. I got notified my modified rilo got approved for return to duty with ALC-2. I was basically told that it would be an full meb and possible retirement but was returned to duty within a day. I’m being told I can’t do anything about it so is there any appeal process or guidance because my peblos has decided to not help now that it was returned back to duty.

 

[Helpcat]

I just received notification from the PEB as well saying Fit For Duty. I'm appealing as well, I am unable to do any Army stuff do to my P3 profile. I'm Artillery but currently in a ROTC slot at the moment. According to the board I can go back to the big Army, even though I can't deploy, can't take a PT test, Can't stand for more then 30 minutes.

How are you appealing this process?

 

[RetiredColonel-MikeT]

As a former PEBLO, I have indeed seen this in action more than once, it's hard to convince the IPEB that you truly are unfit for duty, their take is that you can do many other things as a doc, such as profiling officer, etc. We had a doc who had their priv to prescribe taken away and they were still found fit :/ I checked AR 635-40 ch 4-28 (Army) and it doesn't say much re: docs, I'll see if I can find something later when I'm home

 

[robins]

How are you appealing this process?

You can appeal to a formal board. It's the same process as appealing unfit findings. My understanding is that the only difference is that is you are appealing a "fit" finding, they don't have to grant you a formal board.

 

[RetiredColonel-MikeT]

You can appeal to a formal board. It's the same process as appealing unfit findings. My understanding is that the only difference is that is you are appealing a "fit" finding, they don't have to grant you a formal board.

You are correct

 

[Jbsaplz]

Thanks for all the replies everyone. I spoke with legal and will begin with a written appeal. She confirmed that every doctors appeal that she has helped with has been denied, so it seems like a lost cause more or less. The frustrating thing is the PEB is saying according to AR 635-40, 5-4e deployment considerations or restrictions do not apply to medical officers. When I read that regulation, I don’t feel that’s what it says, though the lawyer says even if it isn’t written that way the PEB interprets it as such. Like mentioned above, it seems that as long as I can write prescriptions I will be deemed fit for duty. Very annoying that the army didn’t take any special accommodations before an injury but have no problem making them in order to prevent me from separating.

 

[chaplaincharlie]

I suggest you hire outside counsel. I can't remember the user name, but a former military doc was successful using outside counsel. WWW.PEBLAWYER.COM

 

[Helpcat]

You can appeal to a formal board. It's the same process as appealing unfit findings. My understanding is that the only difference is that is you are appealing a "fit" finding, they don't have to grant you a formal board.

I spoke to my peblo and the ADC. They said I can’t appeal anything since I never got a af 356 or 618 since it never made it that far in the appeal process. At this point I’m just going to take my separation date and do everything with the va. My understanding is they think it got returned back to duty since I’m out Nov 1, and I’m medical as well.

 

[robins]

I spoke to my peblo and the ADC. They said I can’t appeal anything since I never got a af 356 or 618 since it never made it that far in the appeal process. At this point I’m just going to take my separation date and do everything with the va. My understanding is they think it got returned back to duty since I’m out Nov 1, and I’m medical as well.

If you are interested in appealing or understanding the process better, you need to chat with your PEB legal counsel. I don't know how to get a hold of them but there should be someone at the PEB level that can point you in the right direction. The ADC aren't necessarily experts in PEBs but there should be legal counsel that focuses on PEBs that can give you guidance.

 

[Jbsaplz]

I have a formal appeal scheduled for April 2023. They continue to argue that despite the MEB/NARSUM report, Commander's opinion that I should be released, and permanent profile functional limitations, I am still "fit". This is 100% because I am a physician. I understand their argument that I may be able to physically function as a doc, but I don't understand how the PEB can ignore the regulation that says I do not meet the minimum fitness/retention standards. This is a snippet from my appeal memo, which includes the regulation that I feel should immediately disqualify me from retention on active duty service:

"According to AR 635-40, 5-4c (1): as a minimum standard, all soldiers are expected to be able to complete functional tasks listed on DA 3349. Per my permanent profile, I am unable to perform 3 of the functional tasks (unable to ride in a military vehicle wearing protective gear, unable to wear helmet/body armor/load bearing equipment, and unable to move >40 pounds while wearing protective gear). The regulation does not offer any exception or special consideration for MC Officers."

The regulation DOES have an exception for deployability (IE being nondeployable is not enough to be medically separated for MC officers), but I don't understand how the army can justify ignoring this regulation when my permanent profile clearly states I am not able to complete the functional tasks on the DA3349.

Does anyone have any advice on how I should approach my in person appeal board? Or is there any avenue that I can escalate this further to get someone to review the appropriate interpretation of this regulation?

 

[Provis]

I have a formal appeal scheduled for April 2023. They continue to argue that despite the MEB/NARSUM report, Commander's opinion that I should be released, and permanent profile functional limitations, I am still "fit". This is 100% because I am a physician. I understand their argument that I may be able to physically function as a doc, but I don't understand how the PEB can ignore the regulation that says I do not meet the minimum fitness/retention standards. This is a snippet from my appeal memo, which includes the regulation that I feel should immediately disqualify me from retention on active duty service:

"According to AR 635-40, 5-4c (1): as a minimum standard, all soldiers are expected to be able to complete functional tasks listed on DA 3349. Per my permanent profile, I am unable to perform 3 of the functional tasks (unable to ride in a military vehicle wearing protective gear, unable to wear helmet/body armor/load bearing equipment, and unable to move >40 pounds while wearing protective gear). The regulation does not offer any exception or special consideration for MC Officers."

The regulation DOES have an exception for deployability (IE being nondeployable is not enough to be medically separated for MC officers), but I don't understand how the army can justify ignoring this regulation when my permanent profile clearly states I am not able to complete the functional tasks on the DA3349.

Does anyone have any advice on how I should approach my in person appeal board? Or is there any avenue that I can escalate this further to get someone to review the appropriate interpretation of this regulation?

Its super hard to be found unfit. Have you consulted with a private attorney? You need expert advice that is probably more nuanced than what we can provide.

 

[RetiredColonel-MikeT]

I have a formal appeal scheduled for April 2023. They continue to argue that despite the MEB/NARSUM report, Commander's opinion that I should be released, and permanent profile functional limitations, I am still "fit". This is 100% because I am a physician. I understand their argument that I may be able to physically function as a doc, but I don't understand how the PEB can ignore the regulation that says I do not meet the minimum fitness/retention standards. This is a snippet from my appeal memo, which includes the regulation that I feel should immediately disqualify me from retention on active duty service:

"According to AR 635-40, 5-4c (1): as a minimum standard, all soldiers are expected to be able to complete functional tasks listed on DA 3349. Per my permanent profile, I am unable to perform 3 of the functional tasks (unable to ride in a military vehicle wearing protective gear, unable to wear helmet/body armor/load bearing equipment, and unable to move >40 pounds while wearing protective gear). The regulation does not offer any exception or special consideration for MC Officers."

The regulation DOES have an exception for deployability (IE being nondeployable is not enough to be medically separated for MC officers), but I don't understand how the army can justify ignoring this regulation when my permanent profile clearly states I am not able to complete the functional tasks on the DA3349.

Does anyone have any advice on how I should approach my in person appeal board? Or is there any avenue that I can escalate this further to get someone to review the appropriate interpretation of this regulation?

I don't know if it still is in effect or if it's been extended or reapplied, but when I was dealing with this, there was a USAMEDCOM directive that came out, signed by the Secretary of the Army that superseded many of the soldier skill requirements "for the needs of the Army". If that is in any way still in effect then short of resigning your commission, I do not know of an "out" - I agree with @Provis's suggestion, talk to a private attorney who is WELL versed in the IDES process. All I can offer is "good luck"

 

[snaketorres]

Jbsaplz, I agree with you that MC officers are mistreated throughout this process. It's utter bullshit that we even have to go through all of this if the outcome is predetermined, especially all of the retirement briefs that will have to be repeated later. If we are going to be treated as "special" we should have a separate process with clear regulations. I am earlier in the process than you, but I hired a civilian lawyer from day 1. I have and will continue to use every appeal available to me. There are some great attorneys on this site and I highly recommend you seek their services.

 

[snaketorres]

Have you had any updates on your case?

My case is currently at the PEB on vote 3. Guess I’ll see how the tie breaker turns out. Planning on FPEB though.

 

[dadof2ishard]

Jbsaplz, I agree with you that MC officers are mistreated throughout this process. It's utter bullshit that we even have to go through all of this if the outcome is predetermined, especially all of the retirement briefs that will have to be repeated later. If we are going to be treated as "special" we should have a separate process with clear regulations. I am earlier in the process than you, but I hired a civilian lawyer from day 1. I have and will continue to use every appeal available to me. There are some great attorneys on this site and I highly recommend you seek their services.

Can you point me to a few in case i have to appeal

 

[dadof2ishard]

Sorry to hear they got you over a barrel doc, i heard a conversation going around that it takes millions to train a officer and a few thousand to train enlisted, i guess they are afraid you will start up your own practice or go work at the VA so in my words they are going to make things difficult, but every now and then the doctor needs a doctor too, i know crippling back pain and the long term effects of it, i know one thing that's helped me the most was multiple ER visits.