DEPARTMENT  OF THE  NAVY 

B O A R D   F O R   C O R R E C T I O N   O F   NAVAL  R E C O R D S  

2  N A V Y   A N N E X  

W A S H I N G T O N   D C   2 0 3 7 0 - 5 1 0 0  

JRE 
Docket No:  4637-01 
6 March  2002 

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  28 February 2002.  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. 

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. 

The Board  noted  that in  order for a service member to be separated or retired  by  reason  of 
physical disability, he must be unfit to perform the duties of his office, grade, rank or rating 
by  reason  of  physical disability.  The Board  was  not persuaded that you  were unfit for duty 
because of  your bilateral knee conditions.  In  this regard,  it substantially concurred with the 
enclosed  rationale of a hearing panel of  the Physical Evaluation Board, dated 24 May  1996. 
There is no question that you  had  a long history of knee problems;  however, you  continued 
to perform your duties in  a very creditable manner despite those problems. 

The Board  noted  that you  underwent a pre-separation  physical examination during February 
1997, and  were found physically qualified for separation, as well as for  "retention on active 
duty at sea,  in  the field or on  foreign or domestic shores." You  did  not disclose any 
conditions you  felt were disqualifying for further service at that time, despite being 
admonished to do so, and  you  specifically denied having a history of  frequent trouble 
sleeping, depression or excessive worry, loss or memory or amnesia,  or nervous trouble of 
any sort.  You  were voluntarily discharged on  1 June 1997, and assigned a reenlistment code 

of  RE-1 A,  which  indicates you  were eligible and  recommended for further service.  .The fact 
that the Department of Veterans Affairs (VA)  as awarded you  substantial disability ratings 
for multiple conditions was  not considered probative of  error or injustice in  your case, 
because the VA  makes  such awards without regard  to the issue of  fitness for military duty. 
None of the conditions rated  by  the VA rendered  you  unfit for duty in  1997 or significantly 
impaired your ability to perform  your duties.  It does not appear that you  suffered from 
depression,  post  traumatic stress disorder or other significant mental disorder prior  to your 
discharge. 

In  the absence of  evidence which  demonstrates that  you  were unfit for duty at the time of 
your discharge, the Board  was  unable to recommend any corrective action in  your case. 
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 

SIN  DIEGO  HEARING  PANEL  RATIONALE 

A  m e d i c a l   b o a r d   m e t   a t   N a v a l   H o s p i t a l ,   O k i n a w a ,   J a p a n  
o n   04 J a n u a r y   1996  w i t h   d 3 a g n o s e s   of.: 

1 ,   M i l d   D e g e n e r a t i v e   J o i n t   Disease  B i l a t e ~ a l  K n e e s   7159 
2.  L a t e r a l   M e n i s c a l   T e a r   Of  L e f t   K n e e   B o t h   C l i n i c a l l y  

a n d   by  M R I   8 3 6 1  

T h e   R e c o r d   Review  P a n e l   f o u n d   t h e   m e m b e r   fit f o r   d u t y   o n  
07  F e b r u a r y   1996. 

I 

. . 

T h i s   member  a p p e a r e d   b e f o r e   t h e  P a n e l   o n   0 2   May  1996 
r e q u e s t i n g   t o   b e   f o u n d   u n f i t   f o r . d u t y ,   r a t e d   a t   20% 
d i s a b i l i t y   u n d e r   V A   Code  5003  a n d   s e p a r a t e d   w i t h   s e v e r a n c e   p a y .  

.  - 

A d d i t i o n a l   a c c e p t e d   d o c u m e n t a r y   e v i d e n c e   c o n s i s t e d   o f :  
E x h i b i t   B  - A d d i t i o n   m e d i c a l   i n f o r m a t i o n  
E x h i b i t   C  -  P h o t o c o p y   o f   S e r v i c e   R e c o r d   Book 
The  member  h a s   a   l o n g   h i s t o r y   o f   c o m p l a i n t s   o f   k n e e   p a i n   d a t i n g  
b a c k   more  t h a n   a   d e c a d e ,   T h e   m e m b e r ' s   m e d i c a l   b o a r d   o f   4  J a n u a r y  
1996  o u t l i n e s   t h e   h i s t o r y   o f  
I t   a l s o  
r e p o r t s   n s u b t l e   c l i n i c a l   f i n d i n g s   o f   l a t e r a l   m e n i s c u s   t e a r   o f   t h e  
l e f t   k n e e   a n d   m i l d   d e g e n e r a t i v e   j o i n t   d i s e a s e n .   The  m e m b e r ' s  
m e d i c a l   b o a r d   s u g g e s t s   t h a t   t h e   m e n i s c a l   t e a r   was  a s y m p t o m a t i c  
u n t i l   i t   was  i n c i d e n t a l l y   d i s c o v e r e d   o n   a n   M R I   d o n e   i n   December 
1 9 9 5 .   The  M R I   r e p o r t   m a k e s   t h e   d i a g n o s i s   o f   t h e   m e n i s c a l   t e a r ,  
b u t   f i n d s   n o   o t h e r   a b n o r m a l i t i e s .   T h e   m e m b e r ' s   c o m p l a i n t s   o f  
d e g e n e r a t i v e   j o i n t   d i s e a s e   seem  t o   b e   b a s e d   o n   h i s   s u b j e c t i v e  
c o m p l a i n t s   a n d   m i n i m a l   f i n d i n g s   o n   p h y s i c a l   e x a m i n a t i o n   s u c h   a s  
m e d i a l   j o i n t   l i n e   t e n d e r n e s s   o n   t h e   l e f t .   H o w e v e r ,   i t   s h o u l d   b e  
n o t e d   t h a t   t h e   member  now  r e p o r t s   r e c e n t   l o o k i n g   o f   h i s   k n e e  
s i n c e   t h e   m e n i s c a l   t e a r   was  d i s c o v e r e d ,   T h e r e   a r e   n o   d o c u m e n t e d  
m e n t i o n s   o f   t h i s   l o c k i n g   i n   a n y   o f   t h e   d o c t o r ' s   r e p o r t s .  

t h e   m e m b e r ' s   k n e e   p r o b l e m s .  

T h e   member  was  o f f e r e d   a r t h r o s c o p i c   s u r g e r y   t o   r e p a i r   t h e  
m e n i s c a l   t e a r ,   b u t   t u r n e d   i t   down.  He  r e q u e s t e d   t h e   PEB. 
t h e   m o s t   r e c e n t   S t a n d a r d   Form  6 0 0   e n t r y   f r o m   1 0   A p r i l   1 9 9 6   s t a t e s  
t h a t   t h e   member  d e s i r e s   s u r g e r y .   T h e   member1 s  c o u n s e l   n o t e s   t h e  
h a n d   w r i t t e n   comments  i n   t h e   m e m b e r ' s   r e c o r d s   t h a t   w e r e   made  by 
C o l o n e l   A l b e r t s o n .   He  s u g g e s t s   t h a t   t h e   r e f u s a l   o f   s u r g e r y   d o e s  
n o t   r e n d e r   t h e   member  p r e s u m e d   f i t ,   b u t   o n l y   m i g h t   make  him 
u n r a t a b l e   i f   t h e   r e f u s a l   were  u n r e a s o n a b l e .  
t h a t   t h e   member  i s  now  w i l l i n g   t o   u n d e r g o   s u r g e r y ,   t h e   q u e s t i o n  
i s   m o o t ,  

I n   v i e w   o f   t h e   f a c t  

Now 

E n c l o s u r e   ( 1 )  

AUTHENTICATION 

PRESI D ~ N G  O F F 1  CER 

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SECNAVINST  1 8 5 0 . 4 C   HAVE  BEEN  MET. 

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DATE 

MEMBER'S  STATEMENT  OF  UNDERSTANDING: 

I  UNDERSTAND  THAT  THE  RECOMMENDED  F I N D I N G   OF  F I T   FOR  DUTY 

I S   S U B J E C T   TO  LEGAL  AND  Q U A L I T Y   ASSURANCE  REVIEWS  A N D   APPROVAL  BY 
THE  P R E S I D E N T   OF  THE  PEB. 
P R E S I D E N T ,   PEB  I S   THE  F I N A L   DETERMINATION  AND  CAN  ONLY  BE  CHANGED 
I F   A  P E T I T I O N   FOR  R E L I E F   FROM  F I N A L   ACTION 
DIRECTOR  OF  NCPB. 
DIRECTOR,  NCPB  NOT  LATER  THAN  1 5   DAYS  FROM  R E C E I P T   OF  THE  F I N A L  
I  HAVE  BEEN  COUNSELED  CONCERNING  THE  P R O V I S I O N S  
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A  P E T I T I O N   FOR  R E L I E F   MUST  BE  RECEIVED  BY  THE 

THE  F I N D I N G   LETTER  S I G N E D   BY  THE 

I S   ACCEPTED  BY  THE 

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FOR  ACTIVE  DUTY  MEMBERS  -  COMPLETE  MAILING  ADDRESS  OF  COMMAND/PSD 
HOLDING  MEMBER'S  S E R V I C E   RECORD. 
FOR  T E M P O R A R Y   D I S A B I L I T Y   R E T I R E D   LIST  MEMBERS  ( T D R L )   -  C O M P L E T E  
HOME  ADDRESS  AND  DAYTIME  PHONE  NUMBER. 

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( S O T G )  

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LEGAL  REVIEW 

DATE  TO  REVIEWER: 

THE  RECORD  OF  PROCEEDINGS  OF  THE  PEB  HAS  BEEN  REVIEWED  FOR  LEGAL 
S U F F I C I E N C Y   A S   REQUIRED  BY  S E C N A V I N S T   1 8 5 0 . 4 C   AND  I S   LEGALLY 
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