DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
JRE
Docket No: 3729-O
28 August 2001
From: Chairman, Board for Correction of Naval Records
To:
Secretary of the Navy
Subj: F O
RE
Ref: (a)
10
U.S.C. 1552
Encl:
(1)
(2)
DD Form 149
Subject’s naval record
1. Pursuant to the provisions of reference (a), Subject, hereinafter referred to as Petitioner,
filed enclosure (1) with this Board requesting, in effect, that naval record be corrected to
show that he reenlisted in the Navy after being found fit for duty and being removed from
the Temporary Disability Retired List.
2. The Board, consisting of Ms. Gilbert and Messrs.
Petitioner’s allegations of error and injustice on 11 July 2001 and, pursuant to its regulations,
determined that the corrective action indicated below should be taken on the available
evidence of record. Documentary material considered by the Board consisted of the
enclosures, naval records, and applicable statutes, regulations and policies.
McCulloch and Tew, reviewed
3. The Board, having reviewed all the facts of record pertaining to Petitioner’s allegations
of error and injustice finds as follows:
a. Before applying to this Board, Petitioner exhausted all administrative remedies
available under existing law and regulations within the Department of the Navy.
b. Enclosure (1) was filed in a timely manner.
c. Petitioner served on active duty in the Navy from 3 April 1991 to 30 April 1992,
when he was transferred to the TDRL because of Hodgkin’s disease. The radiotherapy he
received for that condition resulted in hypothyroidism, which was not considered unfitting.
He was reevaluated by the Physical Evaluation Board (PEB) on 6 November 1996, and found
fit for duty. He accepted that finding on 8 November 1997. On 2 January 1997, the
President, PEB, advised the Chief of Naval Personnel (CNP) that Petitioner had been found
fit for duty, and directed that Petitioner be reenlisted in the Navy if he consented and was
otherwise qualified. Petitioner advised Navy officials that he wanted to reenlist, but his
request was not processed in a timely manner. On 29 April 1999, he was once again advised
that he could reenlist if his physical condition had remained essentially the same as it was at
his last (PEB) evaluation, he was otherwise qualified in all respects, and he consented to
reenlistment. Petitioner consented to reenlistment, but was denied opportunity to reenlist
based on the determination of the Chief, Bureau of Medicine and Surgery, that he did not
meet established physical standards due to a history of both hypothyroidism and Hodgkin ’s
disease, and that his hypothyroidism was unstable. The latter determination was made
notwithstanding the fact that his condition had remained essentially the same as it was when
the PEB found him fit for duty.
d. DOD Directive 6130.3, Physical Standards for Enlistment, Appointment and
Induction, provided, in effect, that when a member was found fit for duty after a period on
the TDRL, prior disabling defects and any other defects identified prior to placement on the
TDRL that shall not have prevented reenlistment at that time, were not disqualifying for
enlistment.
e.
SECNAVINST
1850.4C, paragraph 7019, provided, in effect, that an enlisted
member found fit for duty would be reenlisted, provided he was otherwise qualified, in
grade held when placed on the TDRL, or the next higher grade.
the
CONCLUSION:
Upon review and consideration of all the evidence of record, the Board concludes that
Petitioner was erroneously denied the opportunity to reenlist because of a history of
conditions which were not considered unfitting by the PEB when it took final action on his
case on 2 January 1997. Had his case been handled properly, and completed in a timely
manner, he could have reenlisted in May 1997, when his five-year tenure on the TDRL
expired. Accordingly, the Board finds the existence of an injustice warranting the following
corrective action.
RECOMMENDATION:
a. That Petitioner ’s naval record be corrected to show that he reenlisted in the Navy
for a term of four years on 1 May 1997, as a seaman apprentice, E-2; he was promoted to
seaman, E-3, effective 16 February 1998; and that he was released from active duty and
transferred to the Naval Reserve on 30 April 2001, by reason of completion of active
obligated service, assigned a reenlistment code of RE- 1.
b. That a copy of this Report of Proceedings be filed in Petitioner ’s naval record.
4. Pursuant to Section 6(c) of the revised Procedures of the Board for Correction of Naval
Records (32 Code of Federal Regulations, Section 723.6(c)) it is certified that a quorum was
present at the Board ’s review and deliberations, and that the foregoing is a true and complete
record of the Board ’s proceedings in the above entitled matter.
ROBERT D. ZSALMAN
Recorder
5. Pursuant to the delegation of authority set out in Section 6(e) of the revised Procedures
of the Board for correction of Naval Records (32 Code of Federal Regulations, Section
723.6(e)) and having assured compliance with its provisions, it is hereby announced that the
foregoing corrective action, taken under the authority of reference (a), has been approved by
the Board on behalf of the Secretary of the Navy.
Executive
Direc
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