DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL RECORD

S

2 NAVY ANNE

X

WASHINGTON DC 20370-510

0

ELP
Docket No.  
22 May 2002

1348-02

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

RECORD OF

(a) 10 U.S.C.1552
(b) 10 U.S.C.12686
(c) CMC WASH DEC 0712322 AUG 97  
(d) 

PlOOlR.lJ

MC0 

(ALMAR

251/97)

From:
To:

Subj:

Ref:

Encl:

(1) Case Summary
(2) Subject's Naval Record

medical treatment prior to referral to a medical

Pursuant to the provisions of reference (a), Petitioner, a

1.
former officer in the Marine Corps applied to this Board
requesting, in effect, reinstatement to active duty with his
Regular Marine Corps commission as of 13 March 1992; backdating
of his promotions to major (MAJ;
O-4) and lieutenant colonel
(LTCOL; O-5) and consideration for promotion to colonel (COL;
O-6); a complete and unbiased physical examination along with
all necessary  
board, and retention on active duty until all of his medical
needs are met; and constructive service necessary to complete a
20-year active duty retirement.
Marines who worked for him in Southwest Asia on the
Expeditionary Airfield  
reconsidered for achievement awards,
and that the Secretary of
the Navy and the Commandant of the Marine Corps apologize to his
wife and family for the emotional stress they have endured over
the past 11 years due to the failure of medical authorities to
recognize the seriousness of his medical condition.

He further requests that all

(EAF) Stabilization Project 2000 be

The Board, consisting of Messrs. Bishop, Morgan and

2.
Neuschafer, reviewed Petitioner's allegations of error and
injustice on 1 May 2002 and, pursuant to its regulations,
determined that the partial 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.

The Board, having reviewed all the facts of record

3.
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.

Petitioner's application to the Board was filed in a

timely manner.

C .

Petitioner first enlisted in the Marine Corps Reserve
He reported to active duty for

on 5 March 1973 for six years.
training (ADT) on 15 July 1973 and, four days later, he was
found not physically qualified for service.
terminated on 20 July 1973 and he was discharged from the Marine
Corps Reserve on 10 August 1973 due to an internal derangement
of the left knee.

His ADT was

d.

Petitioner again enlisted in the Marine Corps Reserve
on 12 May 1977 for six years and reported to Officer Candidate
School on 12 June 1977.
The medical record reflects that on
20 July 1977 he hyperventilated after physical training and
complained of a severe headache and numbness in both arms. He
was seen by medical personnel on 25 July 1977 for an injury he
sustained while running, and again on 29 July 1977 for shoulder
pain after he slipped and fell on his left shoulder.
medical record reflects Petitioner fell off a rope on 5 August
1977, but was made to climb up the rope despite a painful left
shoulder.
(2NDLT; O-l) on 19 August 1977.

However, he was commissioned a second lieutenant

The

e.

On 26 August 1977 it was determined that Petitioner had

fractured his left shoulder and would be unable to continue in
The Basic School until October 1977,
formed.
was recommended for full duty on 6 October 1977.

Petitioner was followed by the orthopedic clinic and

when a new company would be

f.

During the next two years, Petitioner was seen for

various medical problems that included blurred vision,
headaches, foot pain, dermatitis,
numbness.
1979 for acute  

and left shoulder pain and
He was admitted to a naval hospital on 20 November

appendicitis  and was discharged from treatment on

2

Petitioner was promoted to first lieutenant
24 November 1979.
(1STLT; O-2) on 26 April 1980 and was accepted for augmentation
in the Regular Marine Corps.
for transfer on 20 October 1980.

He was found physically qualified

g.

The medical record indicates that during the next five
years, Petitioner was seen by medical personnel for a variety of
injuries and ailments.
to captain (CAPT; O-3).

During this period, he was also promoted

h.

On 15 October 1985,

Petitioner had an electro-

encephalogram (EEG) for right-sided headaches and vague right
body dysesthesia.
any clinical suspicion of a seizure disorder, or focal or
generalized brain disease.

The EEG was normal, with nothing to support

i.

Petitioner was awarded the Navy Commendation Medal

(NCM) for meritorious service for the period from July 1985 to
July 1988.
He was awarded the Navy-Marine Corps Achievement
Medal (NAM) for his service as officer in charge of a runway
rehabilitation detachment for the period 24 April to 28 December
1989.

j. On 30 July 1990, while in 

Saudia Arabia, Petitioner
complained of persistent pain and intermittent numbness in his
left shoulder.
He was medically transferred back to the United
states on or about 22 October 1990 and sent to a naval hospital
for vascular surgery and orthopedic consults.
fitness report on  
22 October 1990 is mostly illegible,
but the first page shows
Petitioner was marked outstanding in all categories except for
"endurance" and "military presence."
The reporting senior's
comments, also partially illegible, noted that Petitioner
departed Saudi Arabia in October to receive necessary medical
treatment, his vacancy was not easily filled, and that he always
gave 110% in performance.

fiie in the record for the period ending

The transfer

k.

The medical record indicated that Petitioner was due to

separate on 1 December 1990.
However, his multiple medical
complaints of chronic left shoulder pain and history of vague
neurologic/vascular episodes required medical evaluation and
some sort of treatment prior to discharge.
stated that he would request Petitioner be extended on active
duty pending evaluations and a possible medical board. A
computerized tomography (CT) scan of the chest on 13 December
1990 showed a soft  

ISssue density mass, anterior to the'aortic

The examining doctor

3

arch in the region of the thymus.
mediastinal soft tissue density mass,
which was unclear.

The impression was anterior

the exact etiology of

1.

On 14 December 1990 a medical board diagnosed

The Commandant of the

Petitioner with a probable thoracic outlet syndrome of the left
arm and probable post-traumatic arthritis of the left shoulder,
and recommended a period of limited duty.
Marine Corps (CMC) approved the medical board and restricted the
On 5 March
limited duty to a period not to exceed six months.
1991 Petitioner was referred for evaluation to rule out a  
impingement or abnormality.
The electromyography (EMG) and
nerve conduction velocity (NCV) testings were within normal
limits.
would be discharged unless he was confined to a hospital as an
inpatient or had disability proceedings pending before a
physical evaluation board (PEB).
Petitioner's medical records were forwarded to the PEB.

On 11 June 1991 CMC advised the command that Petitioner

At the direction of CMC,

neuro-

m.

On 11 June 1991 CMC directed Petitioner's discharge on

1 July 1991 due to failure of selection for promotion to MAJ,
and advised him that he would have to sign a written agreement
to serve in the Ready Reserve for three years in order to
On 12 July 1991 the command advised CMC
receive separation pay.
that Petitioner was pending disability proceedings before a PEB,
was undergoing treatment,
modified until 30 September 1991 to provide adequate time for
completion of the PEB.

and requested that the orders be

n.

Petitioner sought emergency treatment on 20 July 1991

for severe back and neck pain and again on 13 August 1991 for
numbness and pain on his left side, and cold and hot sensations
in his head.
On 16 August 1991 CMC was advised that Petitioner
had undergone a spinal tap and would have to be reevaluated by a
vascular surgeon when neurological test results were available.
Accordingly, CMC authorized that Petitioner's discharge be held
in abeyance.

0 .

On 26 September 1991 a second medical board found the
that Petitioner had been treated in multiple clinics including
neurology, physical medicine, orthopedics, vascular surgery,
psychiatry, and the pain clinic.
neurology clinic multiple times and all neurological
examinations and  
During limited duty, he
This
underwent a cranial magnetic resonance imaging  
showed a single unidentified bright object in the subcortical

He had been evaluated by the

EEGs were normal.

(MRI).

4

He was also diagnosed with an adjustment disorder and

The medical board further noted that his many

Numerous other tests

However, the appearance of the MRI was not

white matter.
consistent with demyelinating disease.
were all normal.
symptoms of headache and left-side sensory symptoms could be
explained as part of a complicated migraine syndrome.
the period of limited duty, he became increasingly unable to
exercise.
tentatively diagnosed with myofasical pain syndrome.
medical board opined that Petitioner's problems with continued
left shoulder pain and continued headaches prevented him from
performing full duty in the Marines, and resolution was not
anticipated in the near future.
diagnoses of complicated migraines,
syndrome, and an adjustment disorder with mixed emotional
features.
orthopedics and vascular surgery.
medical board's recommendation on 10 October 1991, and he
declined to submit a rebuttal to the medical board.

Additional diagnoses were to be rendered by

probable myofascial pain

He was referred to a PEB with

During

The

Petitioner was advised of the

P-

However, there was no 

The medical board opined that there was no

On 18 October 1991 an addendum to the medical board
stated that Petitioner had undergone an extensive work-up for
possible thoracic outlet syndrome or post-traumatic arthritis in
the left shoulder.
clearcut evidence of
thoracic outlet syndrome in the left upper extremity.
addendum on 24 October 1991 diagnosed post-traumatic left
shoulder pain.
evidence of instablility,
that could be treated with surgery,
Petitioner's left shoulder pain probably would not improve since
there had been no change in the past 13 years.
On 11 November
1991 Petitioner submitted a rebuttal to the medical board,
however, the recommendation of the medical board remained
unchanged.
On 20 November 1991 the PEB found Petitioner unfit
for duty with a 10 percent disability rating for the migraines,
the syndrome, and the adjustment disorder.

rotator cuff tear or a labral tear
and that it was unlikely

A second

q.

On 3 December 1991 Petitioner was notified of the PEB

In a letter to

findings and given 15 days to respond.
Petitioner on 11 December 1991,
the commanding officer (CO) of
the naval hospital indicated that Petitioner initially declined
to rebut the medical board findings,
but had since changed his
mind after reviewing the addendum, and that appropriate
personnel had failed to advise him that he had five days to
rebut the addendums.
without his rebuttal,
deadline.

As a result, the addendums were forwarded
two days in advance of the submission

The CO stated that the PEB was called to ensure that

5

Petitioner's rebuttal had been received and considered.
advice from the PEB,
and submitted their surrebuttals,
addendum reports.
surrebuttals were faxed in time for the  

Petitioner's rebuttal and the doctor's

the dictating doctors reviewed his rebuttal

directing no changes in the

PEB's consideration.

Upon

r.

On 17 December 1991,

Petitioner did not accept the

preliminary findings and demanded a formal hearing.
for Petitioner then requested that a scheduled hearing on
22 January 1992 be delayed until 24 February 1992, so Peti-
tioner could obtain additional medical evidence.
30 January 1992 Petitioner accepted the PEB findings of unfit
with a 10 percent disability rating.

Counsel

However, on

On 11 February 1992,

the Deputy Naval Inspector General

S .

for the Marine Corps (DIGMC) responded to Petitioner's letter to
the Secretary of the Navy (SECNAV) concerning complaints of
being denied a request mast, institutional bias, and improper
medical treatment.
The DIGMC stated that applications for
request mast with CMC or SECNAV will only be considered if
specifically recommended by the last command endorsing the
application, and that his request mast with the commanding
general, 3rd Marine Aircraft Wing in February 1991 had satisfied
the regulatory requirements.
and abuse were determined to be unfounded.
institutional bias was based on the Marine Corps' intent to
involuntarily separate him for having twice failed selection for
MAJ.
Petitoner's claims that he was denied proper medical treatment,
and noted that CMC had assured his wife that the Marine Corps
would defer discharge until Petitioner's medical status could be
resolved.
The CMC also addressed the promotion issue and stated
that he did not know why Petitioner was not selected for MAJ
since the selection board's findings and deliberations could not
be discussed with anyone who was not a member of that board.
The DIGMC further stated that Petitioner's command had deferred
discharge pending a formal hearing before the PEB, but he later
accepted the PEB findings without a hearing.

His allegations of fraud, waste
His allegation of

The DIGMC stated that there was no evidence to support

t. CMC advised SECNAV that Petitioner had been found

physically unfit for duty with a 10% disability rating.
observed" fitness report for the period 20 December 1991 to
29 February 1992 states that Petitioner had been released from
active duty following failure of selection to MAJ.
physical examination on 10 March 1992 stated that Petitioner was
physically 

qualifieefor  separation, and the PEB had approved

A report of

A 

"not

6

In the report of medical history completed by that

his discharge due to vascular headaches and left shoulder
instability.
Petitioner, he marked  
ever had or have you now heart trouble."
Petitioner was honorably discharged by reason of physical
disability and was paid  
However, it does not appear that he received an Honorable
Discharge Certification (DD Form 256).

"don't 

know" to the question "have you

$77,608.80 in disability severance pay.

On 12 March 1992

U .

On 28 August 1992 Petitioner accepted an appointment as

His application for

At that time, the CO claimed that

a CAPT in the Marine Corps Reserve.
membership in the Selected Marine Corps Reserve was favorably
endorsed on 6 October 1992.
Petitioner met the physical standards required by regulation.
However, the medical problems which led to his earlier discharge
continued.
Department of Veterans Affairs (DVA) records show
that in December 1992 Petitioner had CT scans of his head and
chest which revealed no vascular abnormality, but a low density
mass in the superior mediastinum.
In August 1993, DVA awarded
Petitioner a combined 30% disability rating for degenerative
joint disease  
(lo%), residuals for fracture of left scapula
(lO%), and complex migraine (10%).

V .

Petitioner was promoted to MAJ in December 1993.

(ADSW).

he accumulated numerous periods of

His fitness reports consistently rated him as an
He was awarded a second NAM for superior

Despite his medical problems,
active duty for annual training (AT) and active duty for special
work 
outstanding officer.
performance of duty during a fleet exercise from 28 May to
16 July 1994.
In the fitness report covering this period, the
reporting senior stated Petitioner was an extremely competent,
astute professional, and one of the finest officers with whom he
had ever worked.
numerous days without pay or drill credit.
underwent implantation of a pacemaker due to a diagnosis of
neuro-cardiogenic syncope.
third NAM for superior performance of duty from 1 March to 10
July 1996 as a special projects officer for Marine Aircraft
Group Detachment 46.

The NAM certificate noted that he had worked
In August 1996 he

On 14 July 1998 he was awarded his

W .

Orders dated 28 July 1998 assigned Petitioner to ADSW

from 20 July 1998 through 20 April 1999.
provided by Petitioner shows he did not endorse them until
21 October 1998.
the nearest medical facility for a physical examination. He
accepted the  

The orders directed Petitioner to report to

conditibns of the orders,

and purported to waive

A copy of the orders

7

Petitioner provides no evidence that he reported

the provisions of law providing sanctuary to reservists with
over 18 years of active service,
reference (b).
to a medical facility for a physical examination.
promoted to LTCOL; O-6, effective 1 October 1998.
mediastinal mass which had been enlarging for several months had
an aggregate size of 6X6X5 centimeters and was benign when it
was removed on 15 December 1998.

provided by subsection (a) of

He was
The

X .

On 21 April 1999 orders were issued extending

Petitioner

Petitioner's current ADSW until 2 July 1999.
endorsed the orders on 22 April 1999, certified that he had no
injury or illness that prohibited execution of the orders, and
waived the sanctuary protection afforded under reference (b).
On 21 May 1999 CMC notified Petitioner that he was eligible to
receive Reserve Retired Pay at age 60.
On 22 July 1999 he was
awarded a second NCM for superior performance of duty from April
1998 to July 1999.
performance had saved the Marine Corps in excess of one million
dollars.
On 27 July 1999 he was honorably released from active
duty upon completion of the period of ADSW, as extended.
The
Certificate of Release or Discharge from Active Duty (DD Form
214) issued at that time shows his total period of
active
service was 17 years, 10 months, and 20 days.

The certificate stated that his superior

Y-

A DVA rating decision dated 8 August 2000 shows

Petitioner's combined rating for multiple disabilities had
increased to 70%.

Z .

In support of his application, Petitioner provides

copies of his medical records and a medical history, excerpts
from the Cecil Textbook of Medicine, medal certificates, copies
of AT and ADSW orders, documentation relating to the EAF 2000
project, and an IG report.
He contends that he only accepted
the findings of the PEB because he was told that he could only
submit medical evidence from Navy doctors, and if he appeared
before a formal PEB he would be found fully qualified and
discharged due to failure of selection.
circumstances surrounding his rebuttals to the PEB indicate
noncompliance with medical board procedures, there was undue
command influence on the medical board, the senior medical
officer was unwilling to sign the medical board because of
unanswered questions, and that he was never issued a discharge
certificate in March 1992.
numerous doctors failed to recognize that he had suffered a
number of minor strokes resulting in brain damage, as confirmed

Petitioner also asserts that

He also says that the

8

He

MRIs and a CT scan.

by a Navy MRI, by DVA, and by civilian  
points out that DVA records show that he had a heart block
within months of being released from active duty, and a complete
block while undergoing tests with a civilian doctor which
required an implant of a pacemaker.
Navy doctors either ignored or failed to recognize the
seriousness of the chest mass,
caused dizziness, blackouts,
and damage to the heart.
regarding his heart were never addressed, and states that he is
alive today only because the law required three years service in
the reserves in order to receive severance pay.

which impinged on the heart and

He contends that his concerns

restricted blood flow to the heart,

He further asserts that

aa.

With regard to the EAF project, Petitioner appears to

"heading the wrong  

imply that it was a contributing factor in his failure to be
He claims that a number of senior officers
selected to MAJ.
way" with
believed that the Marine Corps was
the EAF concept, wanted it to fail, and were determined to find
an officer that could be discredited.
unknowingly became that officer, and when he refused to
cooperate, he was referred for a psychological evaluation, which
determined that all of his medical problems were psychosomatic.
He provides documents showing he sought assistance from the
DIGMC, who found his allegations regarding the EAF project were
unsubstantiated.
As a result, he claims the service award he
was to receive for his work in Southwest Asia and at 29 Palms,
and those awards recommended for the Marines who worked for him,
were denied because of poor performance, even though the CO
agreed that awards were warranted.

He asserts that he

bb. Petitioner further contends that it was normal practice

in his assigned reserve unit to be issued vocal orders followed
by written orders, often after the active duty period had ended.
He states that he was often at the mercy of the group executive
officer, who decided if he would be issued orders and paid. He
claims that his ADSW orders of 28 July 1998 were not received
until October 1998, and by this time he already had over 18 plus
years of active service.
He believes that one cannot sign away
his sanctuary rights after already earning the right to
sanctuary.
under reference (b).

He asserts he is entitled to active duty retirement

cc.

Attached to enclosure (1) are two advisory opinions

from Headquarters, Marine Corps (HQMC).
On 17 May 2001,  
Separation and Retirement Branch (MMSR) provided an advisory
opinion and a

"StateTnent  of Service" which shows that on 27 July

HQMC's

9

1999, Petitioner had completed 18 years, 5 months, and 21 days
MMSR states Petitioner participated in at
of active service.
least 26 periods of AT and ADSW from 5 June 1993 to 27 July 1999
and his own records indicate a fitness for duty statement in the
endorsement portion of each of the orders he provided.
also asserts that there was no requirement for Petitioner to
perform any further service after the discharge on 12 March
1992.
MMSR notes that the HQMC Staff Judge Advocate (SJA) has
recently ruled that a Marine who allowed himself to be released
from a period of active duty in which he attained sanctuary,
waived the right to sanctuary.
Accordingly, MMSR contends that
Petitioner waived his right to sanctuary when he allowed himself
to be voluntarily released from active duty on 27 July 1999.
Since he was released from active duty,
review by a PEB.
sanctuary rights.

MMSR recommends that Petitioner not be granted

he is not eligible for

MSSR

dd.

On 28 January 2002, the SJA to CMC provided an

advisory opinion stating that Petitioner was entitled to claim
sanctuary when he passed 18 years active duty while on ADSW
orders during 1999.

The SJA analyzes the issues as follows:

. (1) On or about 20 May 1999, Petitioner accumulated 18
Therefore, on 27 July 1999,

. . . 
years of active duty service.
he had over 18 years active duty service and was entitled
to sanctuary protection per section 12686 of reference
(b) 

. . . 
.

(2) Congress amended section 12686 of reference (b) in

1996, and permitted SECNAV to require, as a condition for
orders to active duty (other than training) for 179 days or
less, a waiver of the right to claim sanctuary.
Prior to
the amendment's effective date (23 September  
1996), SECNAV
could authorize waiver of the sanctuary protection.
As of
27 July 1999, SECNAV authorized neither the Marine Corps
nor the Navy to waive sanctuary protection.

(3) References (c) and (d) permit sanctuary waiver and
generally require insertion of the waiver in ADSW orders of
Marines who have over 17 years active duty.
noted, waiver authority was not delegated to the Marine
Corps, and implementation of waiver as provided in
references (c) and (d) may be legally unenforceable.

However, as

(4) Further, although Petitioner signed a sanctuary
ADSW orders of 21 October 1998, this waiver

waiver in the  

10

was invalid per section 12686 of reference (b), since the
orders were for a period in excess of 179 days.
Petitioner was released on 27 July 1999 he had accumulated
more than 18 years of active service.

When

(5) Petitioner's DD Form 214 incorrectly reflected his

total active duty service as 17 years, 10 months, and 12
Had the Marine Corps accurately kept Petitioner's
days.
records, they would have shown he entered the sanctuary
Under these circumstances, it would be unjust to
zone.
force Petitioner to return to active duty for approximately
two years to earn an active duty 20-year retirement, since
that amount of time has already expired....

(6) It is unclear how Petitioner obtained a Reserve
commission.. ..after being discharged from active duty by
reason of physical disability.
Petitioner repeatedly received active duty orders between
5 June 1993 and 27 July 1999,
serious medical conditions and disabilities.
occasion covered by orders,
and certify that he was physically fit for duty.
set of ADSW orders required a medical officer's examination
and finding that he was in fact physically fit for duty.
There is no documentation indicating that this was done.

Petitioner was required to sign
His final

despite myriad complaints of

It is equally unclear how

On each

(7).... Petitioner's service and medical records are
incomplete.... It is impossible to accurately assess his
physical condition at the times he was ordered to active
duty, and to determine what, if anything, was done by
Petitioner's command to verify his assertions he was
Lack of these records weigh
physically fit for duty....
against an attempt to support his request for readjusted
promotions and a special colonel's board.... If Petitioner
was not physically qualified for active duty, and
intentionally misrepresented his physical condition to
obtain active duty order,
administrative or disciplinary action.
investigation, and since more than adequate time to perform
one has passed, these questions or issues should not
further delay Petitioner's claim for sanctuary....

Petitioner could be subjected to

However, without an

Accordingly, the SJA recommends that Petitioner be granted
active duty credit for retirement purposes from 27 July 1999
until the date he would be eligible for an active duty 20-year
The opinion notes that as a result of his active
retirement.

11

duty retirement, he will be eligible for the medical treatment
he needs under Tricare.
The advisory opinion also recommends
denial of his requests for a regular commission, backdated
promotions, a special selection board, achievement awards for
the Marines he served with in Southwest Asia, and personal
apologies.

ee.

On 18 March 2002 Petitioner responded to the foregoing

Petitioner

He asserts that it is common practice for

advisory opinions, essentially reiterating his previous
contentions and providing additional documentation.
states that he was not medically qualified to receive a
commission in the first place and during a physical. examination
in April 1993, he told the medical officer of his complicated
migraines and of a pending disability claim, but was found
medically qualified.
physically unqualified members at the Marine Corps Reserve, to
sign orders stating that they are qualified.
He asserts that
many of his orders were never signed, and others were issued
after the start or completion of active duty.
was never given a physical examination as directed by his last
set of orders, even though the DD Form 214 states that he
received a separation physical.
orders ever asked him if he believed he was medically qualified,
only if he had any medical limitations which would restrict his
performance on active duty.

He states that none of his

He states that he

ff.

Reference (b) provides that under regulations to be

prescribed by the Secretary concerned, a member of a reserve
component who is on active duty (other than for training) and is
within two years of becoming eligible for military retired pay
may not be involuntarily released from that dutv before he
becomes eligible for that pay, unless the release
the Secretary.

is approved by

CONCLUSION:

Upon review and consideration of all the evidence
Board concludes that Petitioner's request warrants partial
favorable action.
The Board first considered Petitioner's
numerous contentions that the PEB was not signed because the
senior medical officer had unanswered questions, medical board
procedures were not properly followed, the command unduly
influenced the medical boards,
been discharged for failure of selection if he appeared before a
formal PEB, Navy doctors failed to recognize the seriousness of
the mediastinal mass-in his chest,
and that concerns regarding

he was told that he would have

of record, the

12

The President of the PEB signed the PEB

However, the report of medical history Petitioner

However, despite voluminous
his heart were never addressed.
medical records and other documentation available in this case,
his contentions and assertions are neither supported by the
evidence of record nor by any documentation submitted in support
of his application.
report, and it remained unchanged since Petitioner accepted the
Furthermore, the Marine Corps would not
preliminary findings.
have been advised of the PEB results had a majority not
concurred with its findings and recommendations.
examination subsequent to the PEB found him qualified for
PEB's approval of the discharge.
separation, based on the  
The
Board has no way of determining whether or not a heart condition
was considered a relevant factor during the disability
proceedings.
completed at the time of separation shows Petitioner answered
"don't know" to the question
heart trouble".
mass in his chest remained relatively unchanged and medical
analysis did not document any functional impairment at that
time.
six years later that the mass had to be removed.
medical records indicate that this appeared to be more of a
pulmonary problem than a heart problem.
Absent persuasive
evidence that the PEB abused its discretion when it recommended
discharge by reason of physical disability, the Board finds no
valid basis for restoring Petitioner to active duty with his
regular commission, backdating his promotions, or affording
remedial consideration for promotion to COL.
The Board also
concurs with that part of the  
SJA's opinion which states that
Petitioner's request for awards more appropriately falls within
purview of the commanding officer and not this Board.

"Have you ever had or have you now
DVA's medical records indicate that in 1993 the

Civilian medical records indicate that it was more than

A physical

Furthermore,

Navy medical treatment was always

Petitioner's orders during his last period of ADSW directed that
he report to the nearest medical facility for a physical
examination.
The fact that he apparently did not receive these
written orders until some three months later did not excuse him
from this requirement.
available to him while he was in an active duty status.
Board notes that during his last period of active duty he had
the mass in his chest surgically removed by a civilian doctor.
The Board believes that his failure to utilize such treatment
demonstrates he was fearful that his active duty would be
terminated.
fitness exists because following the surgery he continued to
serve on active duty, his active duty was extended for three
months, and he was awarded his second NCM.

The Board also believes that a presumption of

The

Whether this ailment

13

would have resulted in another medical board and PEB, as he now
requests, cannot be determined.

The Board finds it extremely difficult to understand how or why
Petitioner was given a Reserve commission shortly after his
discharge for physical disability.
physical disability with severance pay,
for him to serve in the Ready Reserve in order to receive
disability separation pay.

Since he was discharged for

there was no requirement

The Board believes the

Petitioner's outstanding
Despite his numerous medical problems,
service in the Marine Corps Reserve earned him promotions to MAJ
and LTCOL, two Navy Achievement Medals and a Navy Commendation
Medal, and he was screened for command.
Marine Corps should have known, when it issued the last ADSW
orders, that Petitioner was on the threshold of entering the  
year sanctuary zone.
Since it appears that Petitioner entered
the 18-year zone on or about March 1999, he should not have been
released from active duty at the end of his ADSW.
the sanctuary provisions was of no effect, since SECNAV has not
authorized the Marine Corps to waive sanctuary protection.
However, the Board also
active duty would be unjust given his medical condition.
Therefore, the Board adopts the analysis and recommendation made
in the 
and concludes that Petitioner's
record should be corrected to show that he was not released from
active duty on 27 July 1999 but continued to serve until the
date he first became eligible for a 20 year active duty
retirement.
this date is estimated to be 7 March 2001, but the actual date
will be computed by HQMC.

Based on the statement of service provided by MMSR,

believes that returning Petitioner to

SJA's advisory opinion,

His waiver of

18-

The Board further concludes that the erroneous fitness report
for the period 20 December 1991 to 29 February 1992 which
erroneously states Petitioner was discharged for failure of
selection to MAJ, should be amended to read  
from active duty due to physical disability."
Petitioner may request an honorable discharge certificate by
writing to Commandant of the Marine Corps  
Elliott Road, Quantico, VA 22134-5030.

(MMSB-lo),

Further,

2008

"is being released

RECOMMENDATION:

a.

That Petitioner's naval record be corrected
that he was not released from active duty on 27 July

*

to show
1999 but

14

continued to serve on active duty until the earliest date he
qualified for a 20-year active duty retirement.
of retirement will be computed by HQMC.

The actual date

b.

That the second sentence of the  

"not observed" fitness

report for the period 20 December 1991 to 29 February 1992 be
amended to read  
due to physical disability" vice
duty following failure of selection for  

'I (Petitioner) is being released from active duty
"has been released from active

MAJ" as now shown.

C .

That no further relief be granted.

d.

That this Report of Proceedings be filed in

Petitioner's naval record.

e.

That, upon request, the Department of Veterans Affairs

be informed that Petitioner's application was received by the
Board on 14 June 2002.

4.

It is certified that a quorum was present at the

Board's review and deliberations,
true and complete record of the Board's proceedings in the above
entitled matter.

and that the foregoing is a

ROBERT D. ZSALMAN
Recorder

‘;;/&*
,."

ALAN E. GOLDSMITH
Acting Recorder

The foregoing action of the Board is submitted for your

5.
review and action.

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