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P. Simmons
P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 26647
Experience:  Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
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Do you do answers my phone instead of through the internet?

Resolved Question:

Do you do answers my phone instead of through the internet? Situation is something I wouldn't want placed all over the internet and preferred one on one consult. Thank you!
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 do not have the ability to provide a phone interview. But I can request that our conversation be "locked" after it is complete, so it is not available to search engines like google.
Customer: replied 1 year ago.

That makes me feel a little more comfortable if you will agree to lock it. I just do not want anymore ramifications that I sought out assistance is my concern..


 


 

Expert:  P. Simmons replied 1 year ago.
No worries Ma'am

Can you tell me your question please?
Customer: replied 1 year ago.

I have 19 years in the military. I have an injury that happened while in the military several years ago. I went through a med board that found me fit for duty. (I wanted to be found fit for duty because of being so close to retirement. (16/17 years then) I had a goal to stay in till retirement because I have 2 special needs children that will need life time medical care and that is something that would happen upon my retirement.


I have always put my job first and have great evaluations. I just have an injury but it doesn't stop me from doing my job.


After my medboard I took my PFT and failed part of it because I can't run do to my injury. Even being found fit for duty, I still had documentation I couldn't run. I was told I had to take my yearly pft. I passed 2 parts of it and then the 3rd part, I became injured during the pft and did not pass the 3rd part. (I was still made to take the PFT even with a note that I couldn't run from a military doctor (the one that evaluated me for the med board that had still continued to say I can't run all these years.) I now have a failing score. Even if I would have taken a partial, I would have had a failing score. So, with less than 10 months to go till retirement, I'm being told I can loose everything. Other than providing all the medical documentation of everything over the years, the continued treatment with continued monthly visits to the dr who is trying to fix the issue with different shots, procedures etc. Is there anything to do to secure my retirement so that my children and wife will have medical coverage? 19 years thrown down the drain for an injury that was caused by my job is difficult to swallow.


I am active duty, not reserve or guard. Ill advised by JAG to req the board to fme fit so I would req PLD was found fit but found out afterward can't req PLD unless found unfit. Appealed the board based on that and the appeal was denied. So, now I'm forced to meet the standard of every other full duty member even though I have injuries that make it very difficult to do both fitness evals given the location of the injuries. So it affects every aspect of both tests (pft and cft). I can gut out everything except he run on the PFT due to the length and constant pounding on the low back for that length of time. Can suck up the pain but the body's reaction I can't control and it makes it physically impossible to run any faster because everything spasms, shakes and it's literally out of my control and now the injury running made everything even worse.


What can I do to fight being kicked out and loosing my retirement in just several months?

Expert:  P. Simmons replied 1 year ago.
That is a problem.

When is the next PFT scheduled for Ma'am? How long away?

And you are using an acronym I do not know...PLD? What is that please?
Customer: replied 1 year ago.

PLD is perm light duty


 


Next PFT would not be till Jan 1.

Expert:  P. Simmons replied 1 year ago.
So you have 6 months...that is good.

What is the date you reach 20 years?
Customer: replied 1 year ago.

June 1, 2014 on the button. My actual retirement date is 1 July 2014.


Retirement date is already posted by headquarters Marine Corps in my official record. They have already sent all the auto-generated letters and certificates to my command to be presented at the retirement ceremony.


 


The basis for adsep is going to be, unsat performance for 2 pft failures which basically insuitability to remain standards.

Expert:  P. Simmons replied 1 year ago.
Yea...but they can not adsep unless they give you notice in writing. Will the 2nd PFT failure be in July 2014?
Customer: replied 1 year ago.

2nd pft failure was just a few weeks ago. They notified me that I will get it in writing on Monday.

Expert:  P. Simmons replied 1 year ago.
ahh

Ok...so you do not have till Jan...

That is not good.

That is, it is not good that you have what appears to be a basis for separation and are over a few months away from retirement.

What was your run time on the most recent PFT? Was it even close for your age group?
Customer: replied 1 year ago.

It was 2.5 mins over

Expert:  P. Simmons replied 1 year ago.
Thanks

I understand they "found you fit" at the last exam...is there any medical reason for the failure? That is, can you point to any medical problem that has led to your failing of the most recent run time?
Customer: replied 1 year ago.

 


The MO was going to outright wave the PFT all together but the command said I had to run it since the last score was a failing run time since the last PFT off the med board was failing. Which would have ended up with the same result as a PFT.


Yes, there is medical reason and documentation that has been in my file since the med board. The even the medboard says in their cover letter back to you, just because you were found fit for duty doesn't mean there isn't an injury/issue, it just means you can do your job.


 


Is it worth mentioning that after failing the PFT coming off the med board (my first fail, not last week's fail) that remedial conditioning was never assigned or directed when I write my statement to go with the package?

Expert:  P. Simmons replied 1 year ago.
Thanks Marine

Give me a few minutes...I want to do a bit of research.
Customer: replied 1 year ago.

OK, thank you!

Expert:  P. Simmons replied 1 year ago.
OK...it is has I thought...the order has a provision that requires a medical check be done. If you look at the order it provides

When a Marine is unable to complete a PFT/CFT
due to an underlying physical or medical condition an evaluation by an
Appropriately Privileged Health Care Provider (APHCP) must be conducted in
accordance with references (o) and (p). The APHCP will make a medical status
determination regarding the Marine's ability to complete the PFT/CFT,
PPFT/PCFT or if referral to a Medical Evaluation Board (MEB)/Physical
Evaluation Board (PEB) is warranted.

SO this begs the question...did the command send you through this process? Is that what you described (that you went through this process and they sent you to a MEB but the MEB found you fit for duty)?
Customer: replied 1 year ago.

Yes and I again went to MTF a month ago and the APHCP provider waived the run portion but they made me do it again anyways. He was going to wave the WHOLE PFT but I was verbally counseled that all I was needed to do was get the run portion waved because they would use my last passing run time. I did that, then in the end they said they couldn't do that and said it had to go based on the last time in the system, which is my failed run time in the system. They are not allowed to go beyond that and use the last passing one in the system.

Expert:  P. Simmons replied 1 year ago.
Thank you

The Marine Corps order on this MCO 6100.13 is clear that if you are not able to complete any portion of the PFT, the the APHCP provider can waive them

SO just to make sure, for THIS PFT (the one you just took and failed), did the APHCP provider waive the run portion? IF so, why did you run it...did the command tell you to?
Customer: replied 1 year ago.

Yes the APHCP did waive it.


The reason I ran it, the command felt that the only option would be to run a PPFT on me. Since the order states in the system they have to use the last run time in the system, to cover the run time on this one, it would have been a failing score regardless. Because the last run time in the system was a failing score off of the med board. (Immediately being taken off the med board I failed.).

Expert:  P. Simmons replied 1 year ago.
Thank you

I think your command may be confused...I would not be surprised if the do not give you notice in writing. What you describe Ma'am, if you have a waiver for the run, from a APHCP provider? ANd they want to separate you for failing the run?

That is not going to fly...

Now...that said, you may want to start talking to experienced military law attorneys who can represet you...if this goes to a board (they MUST give you a board if you request one), you want a good lawyer. JAG will provide a young, inexperienced, energetic attorney to assist you.

If you have to go to a board, I would sure consider hiring an experienced attorney to assist

Again, what you describe, you have a great case...but like going into a firefight, if you have to defend yourself, you want all the advantages you can get

So I do not see you being separated in the near future

Now...your next semiannual is due this year...I would sure try and find a way to pass that. To avoid any issue at all....you are so close to retirement. You do not want to loose out on retirement.

BotXXXXX XXXXXne: the Marine Corps order is on your side here. If they try and process you, that waiver will protect you.

But I would start talking to experienced military lawyers in case you have to hire one.

And I would sure try and pass that final PFT


Let me know if you have more questions...happy to help.

And if not, let me know so I can close this down....
Customer: replied 1 year ago.

I looked in that manual and I can't see where you are stating that but I will keep looking.


Thank you!

Expert:  P. Simmons replied 1 year ago.
You want to look at

MCO 6100.13

You can see it here

http://www.marines.mil/Portals/59/Publications/MCO%206100.13%20W_CH%201.pdf

take a look at paragraph 6 of the enclosure

P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 26647
Experience: Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
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