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NAVY | BCNR | CY2001 | 06756-99
Original file (06756-99.pdf) Auto-classification: Approved
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS

2 

NAVY ANNEX

WASHINGTON DC 20370-5100

JRE
Docket No: 6756-99
28 August 2000

From:
To:

Subj:

Ref:

Encl:

Chairman, Board for Correction of Naval Records
Secretary of the Navy

FORMER
REVIEW OF NAVAL RECORD

(9
(1)
(2)

10 U.S.C. 1552

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 his naval record be corrected to
show that he was permanently retired by reason of physical disability.

2. The Board, consisting of Mses. Moidel and 
Petitioner’s allegations of error and injustice on 17 August 2000 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.

Schnittm-an and Mr. Bartlett, 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 tiled in a timely manner.

C.

Petitioner was released from active duty on 8 July 1994, and transferred to the
(TDRL), with a 30% rating for major depression and

Temporary Disability Retired List 
dysthymia. He completed 10 years, 8 months and 19 days active service. He underwent a
periodic physical examination on 4 March 1996. In the opinion of the psychiatrists who
examined him on that date, his condition had improved “somewhat”, but he remained unable
to perform military duty, and his condition was assessed as productive of moderate to severe
interference with social and industrial adaptability. The psychiatrists noted that 
“[t]he patient
may benefit from pharmacologic intervention; however, at present, he has declined to do
’ On 30 May 1996, the Record Review Panel (RRP) of the Physical Evaluation Board
30%) less a

$ZB) made recommended findings that Petitioner’s condition was ratable at 

20% non-compliance factor, based on his failure to take medication for the condition. On 11
July 1996, Petitioner rejected those findings and demanded a formal hearing. He advised the
RRP that he had stopped taking medication because it had had no effect on his depression;
however, he was  “currently looking to start therapy again and maybe start taking Zoloft
again. 
counsel, he accepted the findings of the RRP, and withdrew his request for a hearing. On 18
September 1996, the President, PEB, requested that the Commandant of the Marine Corps
discharge Petitioner with entitlement to disability severance pay.
shown in available records.

” On 9 September 1996, after consultation with Judge Advocate General Corps

The date of discharge is not

d. SECNAVINST 

1850.4(3, paragraph 2117, provided, in effect, that a compensable

disability rating may be reduced to compensate for aggravation or increase in severity of the
rated condition attributed to unreasonable failure or refusal to submit to medical or surgical
treatment or therapy, when the existence and degree of aggravation or increase in severity
are ascertainable by application of accepted medical principles, and where it is clearly
demonstrated that the member was advised clearly and understandably of the medically
proper course of treatment, therapy, medication or restriction; and the member ’s failure or
refusal was willful or negligent, and not the result of mental disease or of physical inability
to comply.

CONCLUSION:

In this regard, it noted that the psychiatrists

Upon review and consideration of all the evidence of record, the Board was not persuaded
that Petitioner ’s failure to take psychoactive medication clearly aggravated his mental
disorder, or caused it to increase in severity.
who performed his final periodic physical examination indicated that medication 
improved his condition. They did not express certainty that medication would have a
beneficial effect, and there is no indication in the available records that validates the
conclusion of the PEB that his condition would have improved with medication by a rating
factor of 20%.
medication may have been related to the effects of his depression, and possibly the result of
mental disease.
In addition, given all of the circumstances of this case, it finds the deduction
of a non-compliance factor premature and unnecessarily draconian, especially given
Petitioner’s statement of 11 July 1996 to the effect that he would consider undergoing
psychiatric and medical therapy.

In addition, the Board believes that Petitioner ’s decision to stop taking

“may” have

In view of the foregoing, the Board recommends the following corrective action.

RECOMMENDATION:

a.
reason

That Petitioner ’s naval record be corrected to show that he was not discharged by
of physical disability.

b. That Petitioner ’s naval record be further corrected to show that he was permanently
retired by reason of physical disability on the date of the discharge set aside subparagraph a.,
above, pursuant to 10 U.S.C. 1201, with a 30% rating under VA code 9209.

c. 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.



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