S
JRE
Docket No: 115 l-02
7 October 2002
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORD
NAVY
ANNEX
2
WASHINGTON DC 20370-510
0
From: Chairman, Board for Correction of Naval Records
To:
Secretary of the Navy
Subj:
FORMER
. REVIEW OF NAVAL RECORD
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 he was transferred to the Fleet
Reserve, vice discharged by reason of physical disability, with entitlement to disability
severance pay, on 17 March
20.
.
LeBlanc and Messrs. Kim and Geisler, reviewed
2. The Board, consisting of Ms.
Petitioner’s allegations of error and injustice on 29 August 2002 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.
3. The Board, having reviewed all the facts of record pertaining to Petitioner
of error and injustice finds as follows:
’s allegations
a. Before applying to this Board, Petitioner exhausted all administrative remedies
available under existing law and regulations within the Department of the Navy.
b. Although enclosure (1) was not filed in a timely manner, the Board concluded that it
would be in the interest of justice to waive the statue of limitations and consider the
application on the merits..
C.
Petitioner was the subject of a medical board on 13 October 1999, and recommended
for a period of limited duty which would permit him to complete 20 years of active duty
service. On 8 November 1999, the Commander, Navy Personnel Command, stated that
Petitioner was not eligible for limited duty, and he forwarded the
Physical Evaluation Board (PEB) for action.
findings that Petitioner was unfit for duty because of chronic low back pain with intermittent
medicai board report to the
On 19 January 2000, the PEB made preliminary
A note on the PEB work card indicates that it would
incapacitating episodes, rated at 10%.
unfit for duty, which would preclude his reassignment to sea duty, and
be best to find him
Petitioner
that he could request permanent limited duty to complete 20 years of service.
accepted the preliminary findings of the PEB on 9 February 2000, and was discharged on 17
March 2000, with entitlement to disability severance pay. He completed 19 years 5 months
and 23 days of active duty service.
d.
Petitioner contends, in effect, that he was under the impression that he could not
remain on active duty in a limited duty status, and the no useful purpose would be served by
requesting a formal hearing. He has since learned that the outcome of his case could have
changed had he pursued either of those courses of action, and he could have been retired
rather than discharge.
CONCLUSION:
Upon review and consideration of all the evidence of record,
Petitioner’s long record of excellent service to the Navy, the circumstances of his evaluation
by the PEB, which apparently found him unfit with the expectation that he would be
continued on active duty, and Petitioner ’s apparent confusion about his options regarding the
findings of the PEB, it would be in the interest of justice to correct his record to show that he
transferred to the Fleet Reserve.
the Board concludes that given
In view of the foregoing, 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 was not discharged by
reason of physical disability on 17 March 2000.
b. That Petitioner’s naval record be further corrected to show that he was released from
active duty on 31 March 2000, and transferred to the Fleet Reserve on 1 April 2000 pursuant
to the Temporary Early Retirement Authority.
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
Pursuant to the delegation of authority set out in Section 6(e) of the revised Procedures of
5.
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 Director
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