recommending that you be re tored to active duty, promoted to commander, or retired by reason of physical disability.

Transcription

1 DEPARTMENT OF THE NAVY ARD FOR CORRECTION OF NAVAL RECORDS 2 NAVY ANNEX WASHINGTON DC Docket No: December 2002 This is in reference to your provisions of title 10 of the A three-member panel of th session, considered your ap injustice were reviewed in a applicable to the proceedings consisted of your application naval record and applicable s considered the advisory opirr dated 15 July 2002 and the I: 2002, and your response for correction of your naval record pursuant to the nited States Code, section &u-d for Correction of Naval Records, sitting in executive cation on 12 December Your allegations of error and ordance with administrative regulations and procedures If this Board. Documentary material considered by the Board together with all material submitted in support thereof, your ttutes, regulations and policies. In addition, the Board Ins furnished by the Director, Bureau of Medicine and Surgery rector, Naval Council of Personnel Boards dated 22 October to. A copy of each opinion is attached. After careful and conscientio s consideration of the entire record, the Board was unable to accept your contention to the :ffect that a hearing was necessary for the proper resolution of your request for correction 0 your record. It concluded that the facts and issues present in your case could be fairly rev :wed in an executive session of the Board, and it declined to authorize a hearing. The Bo :d determined that the evidence submitted was insufficient to establish the existence of pro tile material error or injustice. In this connection, it Board substantially concurred with i ie comments contained in the advisory opinion from the Director, Naval Council of P rsonnel Boards. The Board was not persuaded that you were unfit by reason of physical d ability at the time of your release from active duty and transfer to the Fleet Reserve, or that our release was erroneous. It could find no basis for recommending that you be re tored to active duty, promoted to commander, or retired by reason of physical disability. Your contentions to the effec that you would have been retired by reason of physical disability had your completed I1the Comprehensive Clinical Evaluation Program &r a more timely manner, and that while on terminal leave, you were forced to resign. from a civilian

2 position because of your disorder were considered insufficient to warrant any corrective action in your case. As n ove, you have not demonstrated that you were unfit for duty, which is a prerequisite to isability separation or retirement of a service member. Similarly, the fact th ffer from conditions which had their onset following your service in the Persian hich a physician strongly suspects are due to your exposure to uncertain agents in war, do not demonstrate that you were unfit for duty at the time of your release from activ uty. The issue of disability compensation for the deterioration of your condition which red following your release from active duty is a matter within the purview of the Departm of Veterans Affairs (VA), rather than the Department of the Navy. As you may kn e VA awards disability ratings without regard to the issue of fitness for military duty reas the military departments may assign ratings only in those cases where the service er has been found unfit for duty, and has overcome the presumption of fitness, In view of the foregoing, our application has been denied. The names and votes of the members of the panel will furnished upon request. It is regretted that the cir taken. You are entitled t material evidence or important to keep in mind Consequently, when apply applicant to demonstrate t stances of your case are such that favorable action cannot be e the Board reconsider its decision upon submission of new and ously considered by the Board. In this regard, it is t a presumption of regularity attaches to all official records. for a correction of an official naval record, the burden is on the xistence of probable material error or injustice. Sincerely, W. DEAN PFEIFFER Executive Director Enclosure

3 DEPARTMENT OF THE NAVY BUREAU OF MEDICINE AND SURGERY 2300 E STREET NW WASHINGTON DC IN REPLY REFER TO 6010 Ser M3F1/ July 2002 From: To: Subj : Ref: Encl: Director, Burea Chairman, Boa COMMENTS,,. (a) Letter,Chai (b) SECNAVl? (1) Medical ret of Medicine and Surgery M3Fl (Code 25) for Correction for Naval Records m RECOMMENDATIONS ICO nan Board of Correction for Naval Records Dated 5 July T E rds of w 1. As requested in refere Corrections regarding his :e (a) we have reviewed scharge from the United States Navy. letter to the Board of 2. medic, obstructive sleep apnea re septoplasty and two turbir problems limited his abili physically qualified for re -_ egan to increasin These medical problems i in concentration, poor an8 depression and urinary inc Center have extensively w the cause of his problems. 3. Because for determination whether compensation. Since m ref (b), we recommend th: 4. Enclosure one is return opportunity to review this records document multiple medical problems including a history of liring the following surgeries: uvulapalatopharyngoplasty, te resections prior to his retirement. Although these medical to function in the operational environment, ement by the Naval Hospital Jacksonville. y experience medical problems that effected all areas of his life. :luded: chronic fatigue, recurrent headaches, memory loss, difficulties - management, anxiety, dysphonea, anxiety, joint and muscle pain, ntinence. The Veterans Administration and the Gulf War Health rked up these multiple medical problems without definitely defining was found fit for retirement, his case was not referred to the PEB r not he was eligible for medical retirement or disability medical conditions did not meet retention criteria listed in his case be referred to the PEB for review. 1 for appropriate administrative action. Thank you for the lost interesting case.

4 DEPARTMENTOFTHE NAVY NAVAL COUNCIL OF PERSONNEL BOARDS WASHINGTON NAW YARD 720 KENNON STREET SE RM 309 WASHINGTON. DC IN REPLY REFER TO 5220 Ser: Ott 02 From: To: Director, Na Executive D Records i al Council of Personnel Boards ector, Board for Corrections of Nava l Subj : REQUEST FOR OF FORMER@@ OMMENTS AND RECOMMENDATIONS IN THE CASE Ref : (a) Your ltr (b) SECNAVIN JRE:jdh Docket No: of 23 Jul 02 T This letter re s comments and a reco correction of his n discharged from the given the opportun i Board (PEB) process 2. The Petitione r was thoroughly revi returned. The foil a. Despite hav was able to by complimentary FI and was approved by for a voluntary no n significant medical retirement. Also, Qualified" for reti Medical Officer fo u lingering concerns, weeks prior to hi s b. Within two industrial impairme: was able to maintai until 26 May monitored, evaluate1 (VA). onds to reference (a) which requested mendation regarding Petitioner's request for val records. The Petitioner was honorably U.S. Navy and states he should have been y to go through the Physical Evaluation prior to his discharge. s case history, contained in reference (a), wed in accordance with reference (b) and is wing comments are provided: ng developed Chronic Sleep Apnea, LCDR aintain sufficient functioning as evidenced REPS through 31 October He requested, the Assistant Secretary of the Navy (ASN) medical retirement prior to registration of concerns over his physical qualification for fter having been determined "Not Physically ement in August 1997, LCDR examining d him to be "Physically Qualified", with for retirement on 21 July 1998, about 1.5 etirement. 3ars after retirement, a more significant : had developed. According tob, he active employment as a High School Instructor Iis deteriorating clinical situation has been and rated by the Veterans Administration

5 , 3. The following i concluded : undergone a Medical Evaluation Board o the PEB during the timeframe of his the PEB would likely have records an d demonstrated abili t to remain in a employed status for a n sts that his conditio n PEB to have reflected th e -acute, grave" to overcome the active duty, and, indeed, finding of Fit. Gulf War illness claim is a separate issu e of a likely PEB finding of Unfit appears y office and, thus, bes referred for commen to th e appropriat e Bureau of Medicine s noted that review of th fails to reveal any Gulf War relate d sed illnesses. e t e 4. In summary, hronic Obstructive Sleep Apne a appears to have re s in a progressive impairment of duty but with significan t acceleration afte r etirement. The level of impairment on ercome the finding of Presumed Fit, ly have rendered had his case been referred o the PEB prior to his July 1998 retirement. Thus the denial of is BCNR petition is warranted. In the absence of a findin the issue of Gulf War related nd ought to be referred to BUMED and the VA. 2