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DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100

JRE
Docket No. 05608-06
22 October 2007

Dear

This is in reference to your application for correction of your naval record pursuant to the provisions of title 10 of the United States Code, section 1552.

A three-member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 12 October 2007. Your allegations of error and injustice were reviewed in accordance with administrative regulations and procedures applicable to the proceedings of this Board. Documentary material considered by the Board consisted of your application, together with all material submitted in support thereof, your naval record and applicable statutes, regulations and policies. In addition, the Board considered the advisory opinion furnished by Navy Personnel Command dated 21 August 2007, a copy of which is attached.

After careful and conscientious consideration of the entire record, the Board found that the evidence submitted was insufficient to establish the existence of probable material error or injustice. In this connection, the Board substantially concurred with the comments contained in the advisory opinion. Accordingly, your application has been denied. The names and votes of the members of the panel will be furnished upon request.

It is regretted that the circumstances of your case are such that favorable action cannot be taken. You are entitled to have the Board reconsider its decision upon submission of new and material evidence or other matter not previously considered by the Board. In this regard, it is important to keep in mind that a presumption of regularity attaches to all official records. Consequently, when applying for a correction of an official naval record, the burden is on the applicant to demonstrate the existence of probable material error or injustice.

Sincerely,

							W. DEAN PFEIFFER
			 Executive Director
Enclosure

DEPARTMENT OF THE NAVY
NAVY PERSONNEL COMMAND
5720 INTEGRITY DRIVE
						MILLINGTON TN 38055-0000

						5730
											Ser PERS-95/1769 
											21 Aug 07

MEMORANDUM FOR	EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF NAVAL RECORDS

Via:	Assistant for BCNR Matters (PERS-31C)

Subj:	REQUEST FOR ADVISORY OPINION IN THE CASE OF

	Ref:	(a)	BUPERSINST	l001.39E
		(b)	MILPERSMAN	6110-020
		(c)	MILPERSMAN	1910-168
	(d) SECNAVINST 1770.3D

End:	(1) PERS-31L Memo 5420 PERS-31C of 10 Aug 07

1.	Enclosure (1) is forwarded with the following recommendations and comments regarding request for evaluation through the disability evaluation system (DES) for illnesses and injuries allegedly incurred while under reserve orders.

2.	References (a) through (c) provide guidance for the proper management of reservists who have non-reserve related medical conditions which might impact mobilization potential. Navy Operational Support Centers (NOSC) submit clinical information on personnel. Navy Personnel Command (NPC) assigns physical risk classifications based on the professional recommendations of Chief, Bureau of Medicine and Surgery (BUMED). These classifications include “A”, “B”, and “5”. Risk “5” indicates a Sailor has a medical condition which renders her not physically qualified for mobilization and retention. Sailors assigned risk “5” are given the options to request either discharge, retirement (if eligible) or review by the Physical Evaluation Board (PEE).

3.	In their request for a PEB Sailors indicate if they feel their conditions are Reserve service connected. Per reference (d), Sailors whose conditions are found to be Reserve service connected are processed for line of duty (LaD) benefits. Sailors who fail to respond or to provide information in a reasonable period of time are considered to waive their rights.

Subj:	REQUEST FOR ADVISORY OPINION IN THE CASE OF

4.	Review of available records indicates on 25 March 2005, NOSC Wilmington submitted clinical information on for physical risk classification assignment. On 6 July 2005, NPC, based upon the recommendation of BUMED, found her not physically qualified for retention and assigned a physical risk “5” classification. NOSC Wilmington of her status and after a period of time, she decided to request review by the PEE. In her request, indicated she felt her conditions were reserve service related. Her request was forwarded through the LOD benefits issuing authority (BIA) for review. The BIA requested additional information from NOSC Wilmington to properly determine if the conditions were Reserve service related. On numerous occasions NOSC Wilmington requested provide the information required. The BIA eventually returned the PEB request after five months due to
failure to respond NOSC Wilmington subsequently at her expiration of obligated service (EOS) on 27 April 2006.

5.	PERS-95 cannot support request for relief. Although she felt her conditions were Reserve service related, she failed to provide the additional information which was requested. This failure was deemed to be a waiver of rights for LOD benefits and PEE review. She was properly discharged at her EOS.

6.	Additional questions may be directed to HMCM(SW/AW/FMF) at (901)874-4503 or DSN 882-4503.

Captain, U.S. Navy Reserve
Medical Status Review Officer
Navy Reserve Personnel
Management Division (PERS-495)

FOR OFFICIAL USE ONLY

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