What Are My Rights?

[gineric12]

I am active duty Army, and have had 2 major back surgeries in the past 2 years. It is no secret that my Unit wants to get rid of me because I am filling a slot that someone who is able to deploy could fill. I have a very unique leadership structure because I am stationed at an Air Force Base. The person who has been appointed to "oversee" my medical situation is the Deputy Commander (an 0-5) and he has atleast held the false face of having my best interests in mind.

Recently, I was referred to a neurosurgeon for what everyone involved in my care viewed as a last chance to save my military career (prior to an MEB/PEB). The doctor told me (as expected) that there was no surgical solution to my problems. I have permanent nerve damage in one leg and STILL have back pain. He recommended that I see a pain management doctor to control my long term pain.

I give you this background so you can better understand what has become my problem. When I brought this info to the LTC, which he has required that I report status updates directly to him as tey occur, he said that he was going on leave for 2 weeks and I need to research it during that time and if no resolution was made HE would contact my doctor to initiate the MEB. I figured I was out of options and accepted this fate. I had already researched the MEB/PEB process. I was always a little "put off" by his need to contact my surgeon (an Army ortho guy, that I HAD a good relationship with). He has admitted on more than one occassion that I have always told him exactly the same story he got from my doc, so I wondered why he felt the need to discuss it with him and even emailed a lawyer I had doing some research for me about the legality of it all. Well, when he returned from his leave, we met, and he told me that on Friday (this was a Wed.) he was going to call the doc to initiate the MEB.

On Thursday, I had an appt. with a pain mgmt. doc who offered another surgical solution for my consideration. If successful it would alleviate 50% or more of my pain which I believe would make me "fit" and salvage my 15 year career. When I brought this to my LTC, he completely dismissed it, said my situation had gone on long enough and that he was initiating the board anyway. He plans to contact my doctor tomorrow to proceed with the board.

I have emailed/called the lawyer at JAG unsuccessfully everyday. I NEED to know what my rights are. Can he initiate a board against my will when there is a potential procedure to make me fit for duty? Can he discuss my case with my doctor? My doctor who had been VERY approachable over the past 2+ years is now mysteriously not answering my emailed requests for help, either. Does anyone have any assistance they can offer? Thanks in advance.

[olenavygoat]

Look thru the attached. I meant to include it last time.

Title_38_disability_rating.htm

[john999]

Maybe get an opinion from a non-military lawyer who specializes in military law. They are usually some of those guys around AFB's and other large military bases. I am close to MacDill AFB and I know there are some lawyers who have done military law stuff. At least you would be getting help from someone who is out of the military and not likely to suffer the wrath of the chain of command. It just sounds like your LTC is overstepping the bounds of medical privacy. Others have said here that these medical boards are pretty cut and dried so I dont know for sure what your rights are and that is why some legal person outside the military might be of help.

[Wings]

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I would also suspect my OIC (Convening Authority) of "improper command influence": he may have violated the Privacy Act ! The MEB/PEB is potentially an administrative discharge and as such is subject to litigation with Constitutionally protected appellate rights and remedies.

"No agency shall disclose any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains [subject to 12 exceptions]." 5 U.S.C. § 552a(b). http://www.usdoj.gov/foia/04_7_1.html

I would consult with the base JAG or better yet, a private attorney (independent of field commanders) versed in military law and MEB/PEB regulations. If you are within driving distance to the JAG's office, stop the phone calls and emails - and wait in the reception area until you are seen or scheduled.

Be cool and document all proceedings. Get copies of all your medical records under the FOIA.

*See also 'Note from the Field - A Practitioner’s Note on Physical Evaluation Boards'

http://www.louisvillelaw.com/federal/ArmyP...PEB_Article.pdf

*See also 'The Military Defender' (free phone evaluation)

http://www.militarydef.com/

P.S. I have no personal experience with these attorney's, just might begin your legal rights questions here.

Edited August 23, 2006 by Wings

[Wings]

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Can he initiate a board against my will when there is a potential procedure to make me fit for duty? YES.

Be proactive now. Make a written request for a statement/opinion from the M.D. (pain management doctor) that in his opinion, his medical procedure may greatly alter the course of your disease or injury (fit for duty) . If he can state that "it is as likely as not" that his medical procedure would produce a beneficial effect, this may stall the MEB. But you need a hard copy! ASAP!

Can he discuss my case with my doctor? NO. Not unless you sign consent.

My doctor who had been VERY approachable over the past 2+ years is now mysteriously not answering my emailed requests for help, either. Keep trying. Make a FOIA request for all your military med records prior to any administrative actions. Be friendly.

Edited August 23, 2006 by Wings

[Wings]

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SERVICE AS SOLDIERS' COUNSEL: ADVOCACY BEFORE THE PHYSICAL EVALUATION BOARD

by Dennis E. Brower and LTC Arthur Reynolds, JA, USAR (April 1999)

http://www.louisvillelaw.com/federal/physi...ility_sep_2.htm

Physical Disability - Links and Regulations

http://www.louisvillelaw.com/federal/physi...ability_sep.htm

[gineric12]

Thanks SO much for all of the good information. I have come to feel quite alone throughout this process. I am waiting to meet with my OIC sometime this morning and feel like I have a much better idea of what my rights are.

I talked to a lawyer yesterday and he said a lot of the same stuff you are. I'll keep you posted on any new developments and hope that you will continue to give me advice when able. Thanks!