Rate Conversion disapproved-separate, no med board

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emptytwo629

PEB Forum Regular Member
Here's my story, I hope anyone has some advise.

I'm active duty Navy, submarines. E-6 with just under 9 years in. In February 2009, I was officially diagnosed with Ankylosing Spondylitis by the rhuematology clinic at Madigan Army Base. They prescribed me Humira knowing that the medication is submarine duty disqualifying. My PCM referred me to the ortho clinic at Bremerton Naval Hospital, where the doctor there said that he wasn't going to refer to a med board. He stated that since the medication was working and I am physically able to work there's no need for a med board. So, my PCM disqualed me subs, and told me that since I couldn't perform my in my current rate, that I would have to cross rate.

About 6 weeks ago, I submitted a rating conversion package to NPC which has since come back "disapproved-separate". I'm so confused now. I have more questions than answers (which has been the norm for the past year), but now I'm very scared.

Some of the questions I have are:

Can I appeal this decision?
Can I still request a Med Board?
Am I eligible for any benefits?
My EAOS is March 2011, would they separate before that?

ARRGG!!! I'm soo frustrated. Again any help, referrals, or reference material anyone could offer would be great.

Thank You,
Mike
 
Mike,

Welcome!

emptytwo629 said:
Can I appeal this decision?
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This is a bit tricky. The answer depends on which "this" you mean and what avenue of "appeal" you are talking about. I think that you cannot appeal the decision not to grant a rating conversion. Generally, the military gets a lot of deference on these types of decisions. However, I think that the decision to separate you is appealable. Where you appeal is somewhat convoluted. I think that any administrative separation action has to give you a chance for an administrative separation board. I would pursue that, but it is likely that the board will make an error based on application of what I believe are illegal regulations. After, if you are separated, you could apply to the Board for Correction of Naval Records. But, with this type of issue, I think you will have a hard time prevailing at the BCNR (though, it is possible). I would think your best chance for relief would come in Federal Court. In my opinion, separation based on disqualification of sub or sea duty caused by a medical condition (or its treatment) is flat out illegal. I am suing on behalf of a client for a similar issue.

Can I still request a Med Board?
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Yes. This is not in any regulation, but I would consider first going back to your PCM and seeing if based on the disqualification from subs because of the medication used to treat your condition, he will initiate an MEB. This is a longshot, but you never know. Next, I would consider requesting in writing to your command that you be given a full and fair hearing at the PEB (under the authority of § 1214. Right to full and fair hearing, "No member of the armed forces may be retired or separated for physical disability without a full and fair hearing if he demands it."). Again, they will likely not grant this, but it is possible, and it would tend to help you in court, if you have to go there.

Am I eligible for any benefits?
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If the do separate you, I think you should be eligible for involuntary separation pay. Afterwards, you will be eligible for VA benefits.

My EAOS is March 2011, would they separate before that?
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I have seen admin separations happen very quickly. If they decide to proceed down that course and you are not able to get them to grant a PEB, then I would think you are talking about a few months till they complete the separation.

These are just my thoughts based on what information you wrote. As always, don't take anything on the forum as legal advice. Much will depend on what actions and responses you get from the Navy. But, I would definitely pursue your rights if they kick you out without medical disability evaluation.

Best of luck.
 
Horse hockey! You are required to be referred to a MEB on two fronts. See sections 8001 and 8004 of NAVSEC Instruction 1850.4e

ENCLOSURE 8: MEDICAL CONDITIONS AND PHYSICAL DEFECTS WHICH NORMALLY ARE CAUSE FOR REFERRAL TO THE PHYSICAL EVALUATION BOARD (PEB)

8001 General

a. This enclosure provides a listing, mainly by body system, of medical conditions and physical defects which are cause for referral into the Disability Evaluation System (DES). The major objective of the list is to achieve uniform disposition under the law.

d. Any drug therapy which in and of itself presents significant medical hazards or potential significant complications and/or requires frequent monitoring may render a member Unfit even if the condition in and of itself does not. This treatment may preclude the full performance of duties.



8004 Systemic Diseases

a. Definition. Any acute or chronic condition that affects the body as a whole (systemic) and interferes with the successful performance of duty, or requires medication for control, or needs frequent monitoring by a physician, or that requires geographic assignment limitations or requires a temporary limitation of duty exceeding 180 days, or permanent limitation of duty that effects the whole body (systemic).

c. Arthritis

(1) Rheumatoid Arthritis.

(2) Spondyloarthropathy.

(a) Ankylosing spondylitis.
 
emptytwo629,

Fellow submariner here. What is your command telling you about the rate conversion disapproval. Have you been told that you are being noticed for ADMIN SEP. DO NOT WAIVE YOUR RIGHTS if they try to get you to sign a form stating this I repeat DO NOT SIGN IT. I have a good deal of experience with this. It is normally common practice to expedite an ADMIN SEP for members who are disapproved for rate conversion. PM me for more information if you would like. I hope that everything works out for you. Curious what is your current rate and what rates did you try to convert to?
 
Alright, I know this is an old thread, but I am in a VERY similar situation! Let us begin...

EM1(SS) Nuclear (obviously...)
EAOS: 7/16/2012

Recently received a naval msg that directed NEC removal and submarine disqualification. I was told in the message to force convert or apply for voluntary separation. Knowing I would pretty much screw myself if I applied for voluntary separation, I am putting in a forced conversion package (which I know will not get approved, I was told by the ECM of the rate I applied to convert to, CTN). However, my CCCs think that it's a good idea because that way, it will get disapproved and I will be ADSEP and i will get severance pay. Is this the case? Should I bother getting a MEB? I know that the VA has disability pay in place, so I will be applying for that. I was planning to get out at my EAOS in nine months anyway, but this is happening a little soon. The goal is to get the severance pay and that will hold me over until I get a new job that I can pay bills with, etc. Any ideas? Also, OP, what happened with your case?
 
You need to get a MEB. See enclosure 4 of DoDI 1332.38 for conditions requiring MEB. Where are you located?

Mike
 
OK, I am reviewing that instruction now. It's kinda cool, I spoke with a seps clerk today, being proactive. Turns out, the same type of thing happened to her and now she works in separations. She is super disgruntled about it and told me every little thing that I can do to make sure it turns out my way.

I'm in Kings Bay, GA / Jacksonville, FL area...
 
Looks like my condition is listed under E4.8.1.1.3. Glomerulonephritis and E4.8.1.1.6. Chronic Nephritis. What does this entitle me to or allow me to do? If they disqualified me from my current rate (nuclear EM) and want me to crossrate, they're saying that I am still fit for naval service I'm guessing. But when they disapprove me for rate conversion then the reason they're going to use on my ADSEP is the typical "needs of the navy / manning levels."

Since the medical issues are the root cause for me getting out though, I would think that should be listed as the cause. Does being listed on that DoDI entitle to me to some type of disability rating from the government or something?
 
It sounds like you are tracking with what they are saying....however, I strongly feel that the Navy is wrong on how it disqualifies people from certain duties because of a disability, then declare them fit, then admin sep them. I am fighting this out in a Federal Court case and challenging this policy. (Things don't always move quickly, though. So far, the case has been remanded to the BCNR twice and if we get a favorable outcome there, it will mean that there will likely be no judicial opinion showing that this practice is illegal. It will only be after an adverse BCNR opinion and the parties then fighting out the case in court that we would have an opinion).
 
Hmm well I knew it was shady. It looks like they're trying to skirt rules of medical disability, etc by doing this. So, should I even try a MEB? If I do get one, then what benefits will I get anyway besides the possibility at a DoD disability rating? I'm only at 7.5 years active, so no med retirement. They're also not going to return me to active service. I found out today I'll get a JFV SPD code which will entitle me to about $13k in severance pay...
 
Yes, go for the MEB (not clear that you have that option, but it sure sounds like you are entitled). You seem to be confused about the entitlements, though. You certainly can get a medical retirement with 7.5 years (there is no time in service qualifier for medical retirements- a Seaman Apprentice stepping off the bus at Great Lakes who trips and breaks his neck could be retired).
 
Ah ok, good to know. I was told 8+ years but maybe that person was less than informed. Time for some more research it seems. I am speaking with JAG on Thursday and have a list of questions for them... Thanks for your help.
 
To clarify about the 8 year rule - if you have 8 years active service then the VA will consider all claims as duty related after you are separated.
 
8 plus years refers to conditions that existed prior to service and were not further aggravated by service.

Mike
 
Guess I was a bit off:

By law, a service memebr with over eight years active federal service is eligible for disability
compensation even if his/her condition existed prior to service (EPTS). The eight years of
active service does NOT have to be continuous; however, the Soldier must be on active
duty orders of over 30 days for this rule to apply.
 
I was a submarine nuclear ETC with 10+ years...I was diagnosed with major recurring depression and found myself in the same situation - rate conversion request disapproved. My doctor wouldn't give me another MEB (after coming off LIMDU/assignment limited and facing an admin separation) because my condition was treatable with medication and I was found "fit for full duty" (my medication, however, disqualified me from submarines and nuc field duty). I was separated last November and am still waiting to hear whether or not SECNAV has approved my request to waive the $50K+ SRB recoupment triggered by my nuclear disqual. Until that is resolved, I won't see a dime of separation pay, sold-back leave, or any other pay.

I am fortunate in that I got a job right out of the gate, but I was kept in limbo for a year and a half prior to my separation while the Navy decided I was LIMDU, then assignment limited, then finally FFD - just in time to have my conversion denied. I was admin sep'd within 2 months, and boy, was that a fiasco...PSD couldn't give me a good separation date until about a week out, so I never got to take any terminal leave (the payback for which is now in debt recoupment limbo), nor the opportunity to attend TAPS/SEPS. In my opinion, the involuntary separation transition process (for the Navy, at least, and among many other things) is fundamentally flawed.

If you can get an MEB/PEB, by all means, go for it. The alternative (spending months/years wrangling over bonus recoupments and separation pay) is far worse.

(A little additional info) - the DODFMR's rules governing recoupment of re-enlistment bonuses have changed (but the relevant OPNAVISNT hasn't caught up to it yet...and your disbursing office will follow the DODFMR, not the OPNAVINST). If you are disqualified (and thus are no longer eligible to receive your bonus) as a result of a medical condition not amounting to a disability, the Navy will default to recouping your bonus. You have to file a request of debt recoupment waiver through your CoC and PSD (it goes to SECNAV) and hope that SECNAV approves it; otherwise, you're on the hook for repaying that money. So if you can get evaluated and pick up a disability rating from the Navy (not the VA), it is definitely in your best interests to do so.
 
Per a change in law in the 2011 NDAA, The Navy should not have separated you for the same condition the PEB found fitting. Is that what happened?

Mike
 
maparker said:
Per a change in law in the 2011 NDAA, The Navy should not have separated you for the same condition the PEB found fitting. Is that what happened?

Mike
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Well, that's the thing, Mike...they never did a PEB. The psychiatrist who did the MEB that ended my LIMDU period found me fit for full duty, but the UMO who did my duty and assignment screenings (that disqualified me from nuclear and submarine duty) decided (mistakenly) that my condition/medication was deployment limiting (it wasn't). That took 6 months to clear up, and after a subsequent assignment screening found me worldwide deployable, I still had to force convert due to the nuclear disqual (the conventional community was overmanned), and I was disapproved. As a result, my separation was de jure for "convenience of the government" but was de facto due to my medical condition disqualifying me from the nuclear field. When I went back to my psychiatrist asking if I could seek a PEB, he said that he couldn't recommend me for one in good conscience because I was fully fit (under treatment and medication). In other words, I was fully capable of doing any other job in the Navy...they just didn't have one for me. (Never mind the fact that the medication I was taking was completely innocuous and in no way interfered with my abilities to perform my duties as a nuc and a submariner, a fact the psychiatrist himself admitted...the MANMED says no anti-depressants, so the one job they actually desperately needed me in was not available to me.)

Then they told me that I had to repay my SRB. This was despite the OPNAVINST that at the time stated that bonuses lost due to medical conditions not a disability that were no fault of my own did not require recoupment, but as I said before, the DODFMR had already changed such that it mandated recoupment, but gave the option to seek a waiver. Additionally, though I attempted to seek full separation pay (the caveat in the eligibility instruction specifically outlines a case where it could be awarded for separation due to medical conditions), I was told that I was ineligible due to my "separation code" and that I would receive half separation pay if my recoupment waiver was approved. As it stands right now, I have been out of the Navy for 2.5 months, I haven't seen any separation pay, sold back leave, or pay owed for time served in the month of separation, and as far as I know I'm still on the hook to the Navy for $50K+. The best PSD can tell me is that "this takes a long time to get approved." (The OIC at PSD did say that if it comes back disapproved for any reason, I can seek a BCNR.)
 
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