DEPARTMENTOFTHE NAV
Y
BOARD FOR CORRECTION OF NAVAL RECORD
ANNEX
NAVY
2
WASHINGTON DC 20370.510
0
S
JRE
Docket No:
17 September 2002
279501
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 12 September 2002. Your allegations of error and
injustice were reviewed in accordance
applicable to the proceedings of this Board.
consisted of your application, together with all material submitted in support thereof, your
naval record and applicable statutes, regulations and policies. In addition, the Board
considered the advisory opinion furnished by the Commandant of the Marine Corps dated 10
September 2001, a copy of which is attached, and your response thereto.
*with administrative regulations and procedures
Documentary material considered by the Board
Although your transfer could have been
In this regard, the Board noted that a medical board would not
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. In this connection, the Board substantially concurred with the comments contained
in the advisory opinion. The Board noted that your transfer from an active status in the
Marine Corps Reserve was mandated by statute.
deferred, in the discretion of the Secretary of the Navy, it does not appear that such action
was warranted in your case.
have been initiated unless cognizant medical personnel determined that your condition was
severe enough to have overcome the presumption of fitness which applies to service members
pending non-disability retirement. The presumption, which is defined in SECNAVINST
1850.4D, paragraph 3305, which was in effect at the time in question, would be overcome
where a preponderance of evidence established that within the presumptive period, an acute,
grave illness or injury occurred that would have prevented the service member from
performing further duty if the member were not retiring.
considered to have been overcome in those cases where the member had an otherwise
unfitting medical condition and, based on accepted medical principles, the natural progression
of that condition normally results in either significant life-span reduction/death or
The presumption of fitness was
deterioration to the point where it could warrant a permanent disability rating of 60 percent.
It is clear that your knee condition was not severe enough to have overcome the presumption
of fitness.
In view of the foregoing, your application has been denied.
members of the panel will be furnished upon request.
The names and votes of the
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
DEPARTMENT OF THE NAV
HEADQUARTERS UNITED STATES MARINE CORPS
D
3280 RUSSELL ROA
QUANTICO. VIRGINIA 221 34-51 0
Y
3
IN REPLY
REFER
TO:
177 0
RAM-3
MEMORANDUM FOR EXECUTIVE DIRECTOR, BOARD FOR
NAVAL RECORDS
SORRECYION
3F
Subj :
KEQIJEST
FOR COMMENTS AND
RECOMMENDATlONS
IN THE
Ret:
Enc
1
:
MC0
(a)
(b) Title 10, U.S. Code, Section 14506
P1900.16
(1) Copy of RA Div Comment of 19 Mar
(2) Copy of CMC
Oi
ltr 1770 RAM-3/D of 5 Mar
01
1.
As previously explained in enclosure
(l), which responded
of-
(NOE)
if
The law
essional Inquiry submitted on behalf
references (a) and (b) outline the regulations
pertaining to Marines in receipt of Notice of Eligibility
Benefits when a mandatory retirement date arrives.
al.Lows for modification of a mandatory retirement date only
the Marine is hospitalized or a medical board report has been
received by the Physical Evaluation Board
date of retirement.
had the major's benefits been requested immediately after his
injury,
a medical board would still not have been convened by
the time his mandatory retirement date arrived.
since a medical board was not in the hands of the PEB by
1 February 2001,
benefits were terminated,
for the period during which he was eligible.
terminated NOE benefits
his command,
his retirement date was executed, his NOE
the Marine Corps Reserve Support Command.
and his incapacitation pay was paid
Enclosure (2)
Also,
as stated in a previous response,
for
(PEB), prior to the
Consequently,
and was forwarded to
his service-incurred injury,
with the Veterans Administration.
is still in need of medical treatment for
he is eligible to file a claim
This Headquarters recommends that
3.
a retired status,
in accordance with references
remain in
and
(b).
(a)
Subj:
4.
The point of contact at this
'lity
(NOE) Benefits is
703-784-0512.
Headquarters
for Notice of
By direction
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