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P. Simmons
P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 26302
Experience:  Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
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My son received an honorable discharge after 17 years of service.

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My son received an honorable discharge after 17 years of service. He was discharged due to the fact that he could not pass the fiscal fitness tests for running due to extreme pressure in his chest. He had failed the test 4 out of 5 times (2 to 2-1/2 yearr) yet never received any medical testing for his pain. Subsequently within 4 months of leaving the air force, he had a heart attack. He had 99% blockage in his right artery which, according, to the doctor had been building over a number of years.

He had no desire to leave the service since he already had 17 years in and would have his pension with 3 years. What can he do to get his pension or a portion of it at this point? Who can he talk to to get this resolved. Any direction you can give us would be greatly appreciated.

Maureen Moloney
Submitted: 1 year ago.
Category: Military Law
Expert:  P. Simmons replied 1 year ago.
Thanks for the chance to help. I am an attorney with over 12 years military law experience.

I am truly sorry to have to bear bad news.

If he is out? I fear that it is unlikely he can get back in. To get a pension he must be put back in and then a separate hearing conducted to determine if he should be retired or not.

The only way he could do this...to force the military to take him back and to process him for separation based on a disability, would be if he can prove that the process used to separate him in the first place was flawed.

Under the rules that govern the military, they (the military) are allowed to separate a soldier/sailor/airman/Marine if they can demonstrate that the individual did not conform to physical requirements. Specifically, if their body mass index (BMI) is over a certain percentage, or if they can not pass the regular fitness tests, then it is possible for the military to use this as a basis to separate.

If he was unable to take the physical tests due to some physical disability (like chest pains or a heart condition) the time to raise this would have been during the separation proceedings. That is, by far, the best chance that a service member has to fight this. If a service member is not able to perform exercises due to a physical condition that is related to their service? Then what should happen is that the military should process that service member for a Medical Evaluation Board (MEB) to determine if they have a medical condition that prevents them from serving.

It sounds like that should have happened.

Now...there is a process to challenge the discharge, even after it has been awarded. This is resolved by the board of corrections for military records. This board (every service has their own) has the power to review decisions of administrative boards...so this board could, in theory, reverse the decision to discharge, place him back in the service, and require a MEB be held.

That is the only way he can get retirement at this point.

The process to apply is simple enough. You file this form

DD Form 149 with the board and request they reinstate him and order a MEB be conducted. It would be best to have a lawyer assist in providing documentation to support the request.

But I caution that this is a tough battle...since the board serves to correct errors or injustice. You have to show AT THE TIME of the board, there was an error or injustice. That some error was made at the time.

So tough to do. But perhaps not impossible. If you can convince the board this was an injustice, they have the power to fix that injustice. The one thing in your favor is that it was very recent...had this happened 4 years ago I would say you had zero chance. Now you may have some chance. But understand that it is an uphill battle. You may pay an attorney and still not get the relief you are requesting.


Now...he still has recourse. What you describe? It sure sounds like his recent heart attack was caused by his service. IF he has not already, he can apply to the VA for compensation. The VA will compensate him for his service related heart condition.



Let me know if you have more questions...happy to assist if I can. This is one area I have a good bit of experience at.
Customer: replied 1 year ago.
FYI - the condition was raised throuhg is years in the service and no one did any medical testing on him to ascertain if he in fact had a problem. If they would not listen to him at that time then naturally he had to leave per their discharge. With 99% blockage in amajor artery that had been building over the course of years, he could have died were it not for the doctors here. The doctors at Barksdale did nothing - not even a simple EKG to see if there was a problem. I do understand what you are saying but this problem had been brought to the attention of doctors many times over the past couple of years.
Expert:  P. Simmons replied 1 year ago.
That can help his appeal now. Again, the standard is "error or injustice"

He has to prove that.

I do not want to imply this is not possible. It may very well be he can win this. But it is an uphill battle. The government enjoys a "presumption of regularity". The boar presumes that the government did it right. He must submit evidence to prove otherwise. if he can, then he can get back in

P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 26302
Experience: Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
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