I am a Retiree Recall (RR) who is still on active duty and has become ill with terminal cancer while deployed. I was ref for MEB, the PEB found me fit for duty by Presumption. I appealed to the PDA, and they upheld the PEB decision. I have 5 months left on my current set of orders. I can no longer perform my duties. So I have time to appeal. But to who. seems the Deputy CDR of the PDA in Crystal City is THE MAN. The reg does not offer much recourse while on active duty. I could go on and on with mistake the PEB made in facts, but they did not seem to care much when I pointed those out. I feel very hopeless and alone. Glad I found this site. Just seems I have no advocate, other than myself. In my heart of hearts, I believe the PEB was wrong. I can cite DoDI 1332.38 in my sleep. Well if I could sleep. Looking for ideas? And sleep.
RETIREE RECALL, FIT BY PRESUMPTION
- Thread starter Lake Man
- Start date
Initially, my sincere condolences on your cancer. I am so sorry to hear this.
The DES is, by definition, designed to compensate someone for the loss of a career. You are a retiree recall and you are serving on active duty as a retiree. So there is no loss of career to compensate you for.
Mike, Jason, have either of you encountered anything like this? I haven't.
The DES is, by definition, designed to compensate someone for the loss of a career. You are a retiree recall and you are serving on active duty as a retiree. So there is no loss of career to compensate you for.
Mike, Jason, have either of you encountered anything like this? I haven't.
Given you are a LOS retiree already and I presume eligible for CRDP, I don't see you getting any more if given a disability retirement. I would focus on getting the VA to rate the cancer so that you get CRDP upon separation and that you have VA DIC covered as well. It does not seem right what the PDA did but you need to first determine if it makes a difference. Hate to see you spend time and effort if it will not add any benefit.
Mike
Mike
What is VA DIC?
Struggling against the PDA takes it out of you. Why would I you may ask, well disability would be more pay, also it would put me in the IDES system rather than retirement date plus 400 days. Also, I am pretty darn certain I am right.
ie:
The law, 10 USC 1402 and 1402(a) recognizes retiree recalls going through the DES for disability evaluation. The 10 USC 1402 and 1402a address re-computation of retired pay for disability incurred during Active Duty after retirement when member is found unfit under 10 USC chapter 61 for a disability rated at least 30 percent. The current AR 635-40 addresses in Appendix D when completing the DA Form 199 for a retiree recall.
Furthermore the DoD Financial Management Regulation 7000.14r, Vol 7b (Military Pay Policies and Procedures – Retired Pay), Chapter 7 (Re-computation after additional active duty) section 070303 clearly states “On release from active duty…… may be eligible to receive: B. Retired pay based on a disability incurred or aggravated while serving on active”.
Also AR 635-5-1 [Separation Designator Codes] list the separation code on a DD 214 when a Service member leave AD, lists SPD's for retiree recalls reverting back to retired status due to physical disability.
WFJ Disability, Permanent AR 635–40, para 4–24b(1) note 11
WFK Disability, Temporary AR 635–40, para 4–24b(2) note 11
WFQ Disability, Aggravation AR 635–40, para 4–24b(7) note 11
11 SPD codes identify recalled retirees who, upon reversion to retired status, have incurred a disability (permanent or temporary) or have aggravated a previous disability.
I think the law is on my side,,,,, but, what do you think?
Struggling against the PDA takes it out of you. Why would I you may ask, well disability would be more pay, also it would put me in the IDES system rather than retirement date plus 400 days. Also, I am pretty darn certain I am right.
ie:
The law, 10 USC 1402 and 1402(a) recognizes retiree recalls going through the DES for disability evaluation. The 10 USC 1402 and 1402a address re-computation of retired pay for disability incurred during Active Duty after retirement when member is found unfit under 10 USC chapter 61 for a disability rated at least 30 percent. The current AR 635-40 addresses in Appendix D when completing the DA Form 199 for a retiree recall.
Furthermore the DoD Financial Management Regulation 7000.14r, Vol 7b (Military Pay Policies and Procedures – Retired Pay), Chapter 7 (Re-computation after additional active duty) section 070303 clearly states “On release from active duty…… may be eligible to receive: B. Retired pay based on a disability incurred or aggravated while serving on active”.
Also AR 635-5-1 [Separation Designator Codes] list the separation code on a DD 214 when a Service member leave AD, lists SPD's for retiree recalls reverting back to retired status due to physical disability.
WFJ Disability, Permanent AR 635–40, para 4–24b(1) note 11
WFK Disability, Temporary AR 635–40, para 4–24b(2) note 11
WFQ Disability, Aggravation AR 635–40, para 4–24b(7) note 11
11 SPD codes identify recalled retirees who, upon reversion to retired status, have incurred a disability (permanent or temporary) or have aggravated a previous disability.
I think the law is on my side,,,,, but, what do you think?
Jason Perry
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DIC= Dependency and Indemnity Compensation. See more here: https://www.vba.va.gov/survivors/vabenefits.htm
Yes, I agree that it is possible to be referred to PEB as a recalled retiree and to be retired "again" for disability. I think this in part because of laws and regs you have cited, but you can also tell this is possible because the PEB actually heard your case.
So, I have two comments....like Mike suggested, one issue is to see whether disability retirement will make a difference. But, you stated that it would, so I will move on to the hard part- how to challenge the finding. There basically are two routes available- going to the ABCMR or to Court.
Yes, I agree that it is possible to be referred to PEB as a recalled retiree and to be retired "again" for disability. I think this in part because of laws and regs you have cited, but you can also tell this is possible because the PEB actually heard your case.
So, I have two comments....like Mike suggested, one issue is to see whether disability retirement will make a difference. But, you stated that it would, so I will move on to the hard part- how to challenge the finding. There basically are two routes available- going to the ABCMR or to Court.
You make a great point, by hearing my case they confirmed my eligibility. Problem is , on my 199, they cited my period of eligibility at Sep 2001-2002. Also I did not met the criteria for the presumptive period and should have been consider on evidential standard.
None the less, I need to learn more about the DIC. Is that the same as CRSP? Off to school yet again.
None the less, I need to learn more about the DIC. Is that the same as CRSP? Off to school yet again.
When were you first diagnosed with cancer?
89 Falcon: I think the rule you are ref to, is a 12 month rule in DoDI 1332.38, and I was not within the 12 months where I enter the DES system.
ED: I was in OEF and it was June 2010, I have been in treatment ever since. I take a bowl of pills daily to include daily Chemo. I have lost my rating, which is clearly in the reg, yet here I am, "fit by presumption."
ED: I was in OEF and it was June 2010, I have been in treatment ever since. I take a bowl of pills daily to include daily Chemo. I have lost my rating, which is clearly in the reg, yet here I am, "fit by presumption."
Lake Man,
Are there any updates since your last post on 27 July, 2012?
I am a Retiree Recall who was injured in March 2010 and put on medical PDES orders on 29 Sep, 2010 - the day before I was scheduled to outprocess. After a whole bunch of bouncing around, the MEB determined I have 13 unfit-for-duty conditions and sent my case to the PEB. My DA 199 from the PEB said I'm "Fit For Duty" because I have to overcome the presumption of fitness rule.
Fine, I did that - Four of my unfit-for-duty conditions meet the criteria to overcome the presumption rule - and I sent in my appeal rebuttal. This time, they moved the goal posts and said that, because I'm a Retiree Recall, there is no period of presumption and my rebuttal was denied based on that - the regulations are silent on whether or not the preiod of presumption restarts when a retiree recall comes on active duty and the PEB took the conservative position that I don't have a period of presumption.
My formal board is scheduled for 12 April and I'm looking for any help on if anyone has found something that helps clarify whther or not a retiree recall's perid of presumption restarts or not?
Are there any updates since your last post on 27 July, 2012?
I am a Retiree Recall who was injured in March 2010 and put on medical PDES orders on 29 Sep, 2010 - the day before I was scheduled to outprocess. After a whole bunch of bouncing around, the MEB determined I have 13 unfit-for-duty conditions and sent my case to the PEB. My DA 199 from the PEB said I'm "Fit For Duty" because I have to overcome the presumption of fitness rule.
Fine, I did that - Four of my unfit-for-duty conditions meet the criteria to overcome the presumption rule - and I sent in my appeal rebuttal. This time, they moved the goal posts and said that, because I'm a Retiree Recall, there is no period of presumption and my rebuttal was denied based on that - the regulations are silent on whether or not the preiod of presumption restarts when a retiree recall comes on active duty and the PEB took the conservative position that I don't have a period of presumption.
My formal board is scheduled for 12 April and I'm looking for any help on if anyone has found something that helps clarify whther or not a retiree recall's perid of presumption restarts or not?
A medical retirement is to compensate a soldier for the loss of a career. While there are exceptions based on grave illnesses or injuries after a soldier submits an application for retirement, it is generally held that once an application for retirement is submitted there can be no loss of career. The soldier has completed his career.
When a military retiree is recalled to active duty it is in a retired status (check your orders). Therefore, your retired status doesn't change. So there is no loss of career to compensate for . . .
When a military retiree is recalled to active duty it is in a retired status (check your orders). Therefore, your retired status doesn't change. So there is no loss of career to compensate for . . .
Ed, Thank you for responding. Here's the thing: HRC put me on orders specifically to go through the physical disability evaluation process; and HRC is the controlling entity for the PEB. Therefore, it appears HRC says there is an avenue by which I can have my unfit-for-duty conditions rated - otherwise it's like giving us a loaded weapon with no trigger mechanism. If no avenue to be rated, then no reason for a PEB; if no reason for a PEB, then no reason for a MEB - HRV could have simply let me re-retire and deal with the VA disability system. Yet, here I am. 2.5 years into the process and being told there is no period of presumption for retiree recalls. Doesn't make sense. There must be a way.
Can anyone help me find that way?
Can anyone help me find that way?
Could your recall to active duty to undergo IDES processing have been a mistake? And it took the actual processing of your PEB for your case to rise to someone who caught that mistake?
Maybe.
If I had been processing an appeal from you in the ABCMR that is the logic trail I would have looked at.
Maybe.
If I had been processing an appeal from you in the ABCMR that is the logic trail I would have looked at.
Ed, Good point. I had several conversations and emails with HRC about my orders and they were adamant that my orders are correct and I was entitled to go thorugh the PDES. I will definitely go through my email archives and see if I can find those.
I appreciate your idea and welcome any others - no stone left unturned.
I appreciate your idea and welcome any others - no stone left unturned.
I did over come the PoF finally on my 4th or 5th appeal. This thread points out alot of the key points. If you are in a MEB/PEB, it must apply. Also the ref I used are above.
A RR status is odd at best when "recalled from retired status to Active Duty," is seen as just that, AD. Not to be confused with "Called to Active duty" My only reserve time was while retired. Not true for PDES orders, those are a different animal all together, different section of law. I am now on PDES orders waiting on final paper work, I am a Reservists now. What does all that mean, double talk and honestly doesn't really matter.
I can only speak to my situation............. I believe I may be the only RR to over come the PoF rule. Now the Crazy of it all "for Me" goes back to Mike's post 26 July 12, He was right and I was WRONG. Money is the same. I thought I would get the 75%,,,,,,,,, WRONG!!!!
I do not. I can not get more the my 65% longevity retirement. Yes I will get CRDP. The single biggest benefit is the IDES and the speedy VA rating. Not sure how anyone would ever get the 75% for "disability." By law, one can not get more $ than he/she would have receive for longevity from the military.
A RR status is odd at best when "recalled from retired status to Active Duty," is seen as just that, AD. Not to be confused with "Called to Active duty" My only reserve time was while retired. Not true for PDES orders, those are a different animal all together, different section of law. I am now on PDES orders waiting on final paper work, I am a Reservists now. What does all that mean, double talk and honestly doesn't really matter.
I can only speak to my situation............. I believe I may be the only RR to over come the PoF rule. Now the Crazy of it all "for Me" goes back to Mike's post 26 July 12, He was right and I was WRONG. Money is the same. I thought I would get the 75%,,,,,,,,, WRONG!!!!
I do not. I can not get more the my 65% longevity retirement. Yes I will get CRDP. The single biggest benefit is the IDES and the speedy VA rating. Not sure how anyone would ever get the 75% for "disability." By law, one can not get more $ than he/she would have receive for longevity from the military.
If I may ask, is this applicable to military service members with 20+ AD years of service, but received (let's say) 80% DoD rating via the DoVA D-RAS?
For example: LOS AD military = 65% and IDES DoD AD disability = 75%; which rating percentage is rendered for a potential military disability retirement? Thanks!
Thus, I hope this inquiry remains within the scope of the original thread; if not, please accept my apologies and I shall repost separately.
Best Wishes!
Lakeman: I would definitely like to discuss your case more by email if you would please? My email is jholman@nmu.edu. My MEB counsel mentioned that someone had won their case at a crazy appeal level and it must be you. My PEB counsel said having more detailed specifics about your case would give us the precedence we need to make an inroad for all future Retiree Recalls.
Warrio644: Yes, a great continuation of the thread. I was an early retiree - part of the downsizing of the 90s. Because of 5.5 years as first a Retiree Recall and then on PDES orders, I now have 23 years of service so the info on 20+ years and the affect on medical retirement pay and concurrent VA disability pay is of great interest. I was under the impression that, if, with 20+ years, if the PEB rated me with >80% disability, my medical retirement pay would be at 75% of my base pay - versus the 57.5% I would have from longevity. Plus I would received concurrent pay from the VA. Sounds like that did not happen for Lake Man.
Warrio644: Yes, a great continuation of the thread. I was an early retiree - part of the downsizing of the 90s. Because of 5.5 years as first a Retiree Recall and then on PDES orders, I now have 23 years of service so the info on 20+ years and the affect on medical retirement pay and concurrent VA disability pay is of great interest. I was under the impression that, if, with 20+ years, if the PEB rated me with >80% disability, my medical retirement pay would be at 75% of my base pay - versus the 57.5% I would have from longevity. Plus I would received concurrent pay from the VA. Sounds like that did not happen for Lake Man.
Lakeman & Recalled Retiiree:
Welcome to the PEB Forum and thanks for your posts and feedback; a very interesting topic in my opinion!
Best Wishes!
Welcome to the PEB Forum and thanks for your posts and feedback; a very interesting topic in my opinion!
Best Wishes!
Folks, when you look at something and say, they did this so they MUST be mistaken when they did that, you are making the assumption that the second decision was in error and NOT THE FIRST decision. OK, an error exists. But what IS the error?
I have worked a number of cases where HRC has approved something, or a lessor board has approved something, and now the applicant wants something else based on that action. I have frequently said "While the ADRB has upgraded the applicant's Undesirable Discharge, this Board will not compound that error by . . . "
So errors are made, frequently in favor of the soldier. That does not mean that error will be compounded by subsequent decisions.
I have worked a number of cases where HRC has approved something, or a lessor board has approved something, and now the applicant wants something else based on that action. I have frequently said "While the ADRB has upgraded the applicant's Undesirable Discharge, this Board will not compound that error by . . . "
So errors are made, frequently in favor of the soldier. That does not mean that error will be compounded by subsequent decisions.