If you are a military member but can no longer perform your duties due to a physical or other medical condition, you may no longer be able to serve on active duty. The Disability Evaluation System (DES) has a process to evaluate whether you are fit for duty. But, what happens if you are being evaluated under the DES and you are also being discharged from the military for misconduct?
Under the DES, you receive several physical evaluations, an Informal Physical Evaluation (IPEB), which you can appeal. You then have a Formal Physical Evaluation Board (FPEB), which you can also appeal. While your medical evaluations are on-going, your command has already initiated administrative discharge and you are being administratively separated for misconduct. This is called a “Dual Action” case. This means that you are pending administrative discharge while you are also undergoing a medical evaluation under the DES.
If there is a connection between your misconduct and your medical condition–it is critical that your command be aware. For example, if you were diagnosed with Post-Traumatic Stress Disorder (PTSD) or Traumatic Brain Injury (TBI), your command (and medical authorities) will evaluate whether your medical condition affected your judgment and behavior and thus–contributed to the misconduct. The military wants to be sure to that you receive the appropriate medical treatment you need. They also want to know if there is a nexus between the reasons for discharge and your medical condition. This is why the military carefully reviews your medical history and ensures you have been evaluated by medical professionals to determine if there is a connection.
If there is a clear nexus, it is possible to receive a medical discharge as opposed to an administrative discharge. Some of the factors considered are the severity of your medical condition, the duration of the condition, the severity of your misconduct and your duty history. Of utmost importance is that your medical condition must be credible and substantiated by medical professionals. This is why it is important to seek medical treatment if you are suffering.
The difference between a medical separation and an involuntary separation for misconduct is significant. If you have questions about dual action cases, contact a military defense attorney. Know your rights. Be sure to get the medical and legal help that you need.
Ferah Ozbek is a retired from the #U.S. Air Force where she served as an active duty judge advocate for over 20 years. She continues to practice military law and represents military members and veterans who are facing injustice. To learn more about how Ferah can help you, you can send her an e-mail at ferah@ferahozbek.com or direct message her on LinkedIn. Visit Ferah’s website at ferahozbek.com
