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Allen M., Esq.
Allen M., Esq., Lawyer
Category: Military Law
Satisfied Customers: 15803
Experience:  Lawyer and current JAG officer.
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I was recently medically retired from the Army. I was a National

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I was recently medically retired from the Army. I was a National Guard soldier on Title 10 active duty when I went through my MEB/PEB. My PEB found me unfit and recommended Permanent Medical Retirement. During my PEB processing my title 10 orders ended and I was removed from active duty before I was retired.

I requested my orders to be extened to cover my period of IDES processing specifically according to the regulation 635-40 and DODI 1241.2 para 6.6.3.2.
“A Reserve component member on active duty under a call or
order to active duty specifying a period of 31 days or more, who incurs or aggravates an injury, illness, or disease in the line of duty shall, with the member's consent, be continued on active duty upon the expiration of call or order to active duty until the member is determined fit for duty or the member is separated or retired as a result of a Disability Evaluation System determination."

I retired this month, but prior to retiring, and after many request, I filed an IG complaint with my state national guard. The state IG refused to open a case, so I then filed an IG complaint with the National Guard Bureau IG. The NGB IG refuses to open a case also.

Is there any way I can force them to recognize and follow the regulations concerning MEB/PEB processing of reserve soldiers on active duty and pay me for those months I was denied the orders I should have been on until my retirement date? What would be a good next step? I was thinking of filing another IG complaint with the DOD IG, but assume I will get the same response. I know I can also file for an ABCMR, but feel the military/IG should correct this issue and back pay me as appropriate. Would it be any benefit to obtaining a civilian lawyer to assist with this?
Submitted: 1 year ago.
Category: Military Law
Expert:  Allen M., Esq. replied 1 year ago.
Hello, my name is XXXXX XXXXX I look forward to assisting you today. I bring nearly 20 years of experience in various legal disciplines, including JAG.

You can attempt to sue them under your torts claims act or breach of contract concepts. Unlike a situation where you are trying to sue for personal injury, where you'd be barred from doing so by the Feres Doctrine, you can sue for contract concepts.

You have good language there in your favor, noting the term "shall" which is not a discretionary term. You should have been extended to complete that process.
Customer: replied 1 year ago.
If I file the ABCMR and they rule against me can I still bring a suit for breach of contract at that time. I am just not sure if I should go with a civilian lawyer now or try again to get the system to work. I was also denied promotion consideration at the time due to my unit OIC saying "that I am still pending my MEB/PEB board results." That is another clear violation of the regulations but I have not pursued it because I just wanted to be paid for my service time and retired at that point.

Thank you for your assistance.
Expert:  Allen M., Esq. replied 1 year ago.
No, nothing about your using that process will stop you from being able to sue. Your time to sue would run from the date of any final decision.

Good luck going forward.
Allen M., Esq., Lawyer
Category: Military Law
Satisfied Customers: 15803
Experience: Lawyer and current JAG officer.
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