Ok so there is 4 DEP settings.

Always OFF
Opt IN - default
Opt OUT - how I like to configure my machines and works fine on windows 7 and 10
Always ON

I have set Opt OUT using EMET, can confirm its set correctly with bcdedit and control panel applet.

I then exclude ftprush.exe as that application wont start with DEP, but it crashes.
I diagnosed further using sysinternals process explorer and can confirm when opt out is configured and ftprush.exe is excluded it is still starting with DEP enabled. Opt out is working the same as Always ON.
If I configure Opt in or always off, ftprush starts correctly but that is too weak a configuration for my liking.

Does anyone else have this problem or know a fix for it?