DEPARTMENTQFTHE NAV
BOARD FOR CORRECTION OF NAVAL RECORD

Y

S

2 NAVY ANNE

X

WASHINGTON DC 20370-510

0

JRE
Docket No: 
14 November 2001

1011-00

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.

Naval Records, sitting in executive
A three-member panel of the Board for Correction of 
session, considered your application on 1 November 2001. 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
all material submitted in support thereof, your
consisted of your application, together with 
naval record and applicable statutes, regulations and policies. In addition, the Board
considered the advisory opinion furnished by Headquarters, U.S. Marine Corps dated 28
February 2001, 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. With regard to the issue of your disability rating, the Board
concurred with the rationale of the hearing panel of the Physical Evaluation Board which
considered your case on 9 December 1998. A copy of that rationale is enclosed.
Accordingly, your application has been denied.
panel will be furnished upon request.

The names and votes of the members of the

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
HEADQUARTERS UNITED STATES MARINE CORPS

3280  RUSSELL ROAD
QUANTICO, VIRGINIA 22134-5103

IN REPLY REFER TO:

174 1
MMSR-6
28 Feb 0 1

MEbORANDUM FOR THE EXECUTIVE DIRECTOR,

NAVAL RECORDS

BOARD FOR CORRECTION OF

Subj:

THE CASE OF
USMCR 
(NOT

Ref:

1.

(a) MMER Route Sheet of  
(b) 

SecNavInst 1820.233

15FebO1, Docket No. 1011-00

Reference (a) requests an advisory opinion on
petition to correct his record to show t

tired by reason of physical disability in the E-8 pay grade.

was promoted to the pay grade of E-8
rary Disability 
Re-
ated at 100 percent.
disability was deter-
tabilized at less

mined by the Navy
than 30 percent.
Hearing before the Physical Evaluation Board (PEB).

He rebutted the findings and requested a Formal

The PEB determined that

3.
had st
TDRL.
transfer to the Individual Ready Reserve
pay and benefits at age 60.
the Retired Reserve in the grade of gunnery sergeant (E-7).
the provisions of reference (b),
sergeant (E-8) because he will not have the required 2 qualifying
years in that grade.

At age 60, he can be transferred to
Per
he cannot be retired as a master

is discharge from the
and was granted, a
to receive retired

disability

(IRR)

4.
at
is no provision of law that allows a waiver of the provisions of

an apply for retired pay and benefits
retired as a gunnery sergeant.

There

ately, we must, therefore recommend that
petition not be granted favorable con-
Point of contact is G. Williams, MMSR-5, 784-9306.

sideration.

‘?

and Retirement Branch
By direction of the Commandant
of the Marine Corps

/

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SERVICE AT THE TIME HE WAS  
WITH A DISABILITY RATING OF 100% UNDER V.A. CODE 6821 FOR THE
DIAGNOSIS:

PLACED ON THE TDRL ON 1 DECEMBER 1993

,

(1) CHRONIC PULMONARY COCCIDIOIDOMYCOSIS.

ADDITIONAL DIAGNOSES THAT WERE CONSIDERED CATEGORY III CONDITIONS
WERE:

(2) OPEN-ANGLE GLAUCOMA; AND
(3) BILATERAL UPPER HEMIANOPSIA.

THE 

WRIGHT-

AT:.'THE NATIONAL

PEB RECORD REVIEW PANEL CONSIDERED THE

THE MEMBER DISAGREED WITH THIS FINDING AND DEMANDED A

THE MEMBER UNDERWENT TDRL EVALUATION 17 SEPTEMBER 1996 AT  
PATTERSON AIR FORCE BASE AND ON 23 JUNE 1998  
NAVAL MEDICAL CENTER.
CASE ON 21 AUGUST 1998 AND FOUND THE MEMBER UNFIT FOR DUTY
BECAUSE OF PHYSICAL DISABILITY AND RATABLE AT 0% UNDER V.A. CODE
6835.
FORMAL HEARING.
A FORMAL HEARING WAS CONDUCTED 9 DECEMBER   1998 WITH COLONEL E. G.
BEINHART, III, USMC, AS PRESIDING OFFICER AND CAPTAIN R. N.
BROOKS, USNR, AND CAPTAIN L. E. MCCRACKEN, MC, USN, AS PANEL
MEMBERS.
WINDER, JAGC, USNR.

THE MEMBER WAS REPRESENTED BY LIEUTENANT (JG) D. M.

THE MEMBER ALLEGED THAT HE DEVELOPED

THE MEMBER APPEARED AT THE HEARING REQUESTING TO BE FOUND UNFIT
FOR DUTY WITH A DISABILITY RATING OF 30% UNDER V.A. CODE 6835 AND
PLACEMENT ON THE PDRL.
MARKED FATIGUE WITH HIS COCCIDIOIDOMYCOSIS SUCH THAT IT FELT LIKE
HE RAN INTO A BRICK WALL IN 1992; THAT HIS  
FATIGUE HAS PERSISTED
AND IS AT TIMES SEVERE SUCH THAT HE HAD TO RETIRE FROM HIS
CIVILIAN JOB WITH THE MICHIGAN HEALTH DEPARTMENT IN 1997 BECAUSE'
HE WAS ONLY ABLE TO WORK 4 HOURS A DAY WHERE HE HAD PREVIOUSLY
WORKED 8 TO 14 HOURS PER DAY; THAT HE IS ENROLLED IN A MASTERS OF
DIVINITY PROGRAM AT PRINCETON THEOLOGICAL SEMINARY AND HAD TO
DROP SEVERAL COURSES LAST YEAR BECAUSE OF HIS FATIGUE; THAT HE
CANNOT RUN AND CANNOT STAY AS ALERT FOR LONG PERIODS OF TIME;.
THAT AFTER 20 TO 30 MINUTES OF READING HE HAS TO STOP AND REST;
THAT HIS GRADES ARE ONLY AVERAGE TO A LITTLE BELOW AVERAGE; THAT
HE CANNOT PARTICIPATE IN THE SAME KINDS OF ACTIVITIES WITH HIS
WIFE AS HE DID PREVIOUSLY; AND THAT HE HAS DIFFICULTY CLIMBING
STAIRS AND GETS WINDED AFTER JUST 2 FLIGHTS OF STAIRS. TO
SUPPORT HIS REQUEST THE  
TREATING PHYSICIAN, DR. CAROL A KAUFFMAN, CHIEF OF INFECTIOUS
DISEASE AT THE UNIVERSITY   OF MICHIGAN MEDICAL SCHOOL AND THE ANN
ARBOR V.A. MEDICAL CENTER, AND NON-MEDICAL EVIDENCE LETTERS FROM
THE DIRECTOR OF PROFESSIONAL STUDIES AT PRINCETON THEOLOGICAL

MEMBER PRESENTED TWO LETTERS FROM HIS

'IN THE MICHIGAN DEPARTMENT OF

SEMINARY, TWO FORMER CO-WORKERS
PUBLIC HEALTH, AND A FRIEND.
AFTER CAREFUL REVIEW OF ALL THE
UNANIMOUS OPINION, THE HEARING P
UNFIT FOR FULL DUTY IN THE U.S.
DISABILITY.
CHRONIC PULMONARY  
PROLONGED DRUG THERAPY, AND  
CURRENTLY IN REMISSION, THE MEMBER CONTINUES TO HAVE SIGNIFICANT
FATIGUE THAT LIMITS HIS ACTIVITIES AND WOULD INTERFERE WITH THE
ADEQUATE PERFORMANCE OF REQUIRED MILITARY DUTIES.

THE RECORD DOCUMENTS THAT THE MEMBER DEVELOPED
COCCIDIOIDO~COSIS  IN 1992 THAT REQUIRED

THAT ALTHOUGH THE DISEASE IS

&ED ON
MAINS
PHYSICAL

ALTHOUGH THE MEMBER HAS SOME SCARRING IN THE RIGHT UPPER LOBE OF
THE LUNG ON CHEST X-RAY, SPIROMETRY AND DLCO WAS NORMAL WITH
PULSE OXIMETRY SHOWING AN OXYGEN SATURATION OF 97% AND EXERCISE
TESTING SHOWING A NORMAL PEAK OXYGEN CONSUMPTION OF 2.2 LITERS AT
89% OF PREDICTED AND CONSUMPTION PER KG BEING 27.9.
PUNCTURE SHOWED NO EVIDENCE OF DISSEMINATED DISEASE.
RATE 
PSYCHIATRIC EVALUATION SHOWED NO DEPRESSION AS A BASIS FOR THE
FATIGUE.
THE EVALUATION AT THE CHRONIC FATIGUE CLINIC AT THE
UNIVERSITY.OF  MICHIGAN INDICATED THAT THE MEMBER'S CHRONIC
FATIGUE APPEARED TO BE CLINICALLY RELATED TO THE EPISODE OF
PERSISTENT PULMONARY COCCIDIOIDOMYCOSIS BUT DID NOT MEET THE
CRITERIA FOR A CHRONIC FATIGUE SYNDROME.

THYROID EVALUATION WAS NORMAL, AND A

WERE NORMAL.

LUMBAR
CBC AND SED

THE MEMBER'S TESTIMONY INDICATED HE IS PURSUING A

SINCE THERE IS NO EVIDENCE OF RECURRENT OR ACTIVE MYCOTIC DISEASE
AT THIS TIME AND NO DRUG THERAPY HAS BEEN REQUIRED SINCE 1995,
THE 30% RATING UNDER V.A. CODE 6835 IS NOT ASSIGNABLE.
BECAUSE THE MEMBER DOES SEEM TO HAVE SOME SIGNIFICANT ACTIVITY
LIMITING FATIGUE, A RATING GREATER THAN 0% IS CONSIDERED
WARRANTED.
DIVINITY DEGREE CURRENTLY  
ABOUT A MILE, CAN OCCASIONALLY PLAY A SET OF TENNIS, AND CAN
CLIMB 2 FLIGHTS OF STAIRS BEFORE HAVING TO STOP DUE TO SHORTNESS
OF BREATH.
THIS IS CONSIDERED TO WARRANT A RATING BY ANALOGY TO
CHRONIC FATIGUE SYNDROME EVEN THOUGH HE DOES NOT MEET THE
CRITERIA FOR THIS DIAGNOSIS.
CONSIDERED TO BE BETWEEN THE CRITERIA FOR THE 10% AND 20% RATINGS
UNDER V.A. CODE 6835-6399-6354, AND WITH BENEFIT OF DOUBT TO THE
MEMBER THE 20% RATING IS ASSIGNED.

WITH.AVERAGE GRADES, IS ABLE TO WALK

THE DEGREE OF IMPAIRMENT IS

HOWEVER,