DEPARTMENT OF THE NAV
BOARD FOR CORRECTION OF NAVAL RECORD

Y

S

2 NAVY ANNE

X

WASHINGTON DC 20370.510

0

JRE
Docket No: 4103-01
20 December 

2001

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

REVIEW OF NAVAL RECORD

(a)

cc>0-J)
(1)
(2)
(3)
(4)

U.S.C. 1552

10 
DOD Directive 1241.1, 3 
SECNAVINST 

1770:3B, 16 Aug 96

Dee 92

DD Form 149 w/attachments
HQMC memo 6000 HS 17 
HQMC memo 1070 JAM7, 4 
Subject’s naval record

Qct 01

Dee 01

From:
To:

Subj:

Ref:

Encl:

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 not released from active duty on 26 February 200 1, and that he be retained
on active duty until his medical problems are corrected.
In the event his primary request is
denied, he requests that his record be corrected to show that he was issued a notice of
eligibility 
civilian earnings, and military medical care.

(NOE) for disability benefits, with entitlement to full pay and allowances less

2. The Board, consisting of Messrs.  
Petitioner’s allegations of error and injustice on 18 December 2001 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.

McPartlin, Whitener and 

Zsalman, reviewed

3. The Board, having reviewed 
of error and injustice finds as follows:

all the facts of record pertaining to Petitioner ’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. Enclosure (1) was filed in a timely manner.

Petitioner entered on active duty for special work 

(ADSW) on 14 October 1997.
C.
period of duty was extended on several occasions, and he remained on ADSW until 30

His 

September 2000. when he was released from active ’duty. On 27 October 2000, he was
issued original orders which purported to order him to ADSW for the period 1 October 1999
[sic] to 29 November 2000. It appears that the orders were issued in order to restore him to
active duty so that he would be eligible for medical treatment for gastroesophageal reflux
disease (GERD) and an associated stricture of the esophagus.
procedures to dilate his esophagus, as well as a laparoscopic Nissen fundoplication in an
attempt to correct the GERD condition. He underwent a magnetic resonance imaging (MRI)
evaluation on 6 November 2000 and was noted to have lower lumbar spondyloarthropathy;
LA-L5 mild circumferential disk bulge with mild to moderate facet arthropathy; 
L5-Sl mild
circumferential 
moderate right and left neural foraminal stenosis. He was evaluated by a neurosurgeon on
14 December 
2OQ0, and referred to an anesthesia pain clinic for trigger point injections, and
to a chiropractic clinic for treatment of chronic low back pain with myofascial features and
lumbar spondylosis. He developed left leg numbness on or about 2 1 February 2001 after
undergoing chiropractic manipulation of his spine; consequently, the neurosurgeon
recommended he undergo an urgent MRI evaluation.

disk/osteophyte complex with moderate facet arthropathy; and mild to

He underwent several

d. A medical record entry dated 20 February 2001 indicates that Petitioner was
undergoing treatment for  “status post” esophageal stricture with laparoscopic Nissen
fundoplication, treated with Prilosec; and degenerative disk disease, for which he was being
followed by the pain, chiropractic, and neurosurgery clinics. The entry also indicates that he
would need continued follow-up in those clinics, as well as by physical medicine/therapy for
traction, and potential follow-up by gastroenterology. The physician who dictated the entry
indicated that Petitioner 
continued care of conditions which began during active service. Should these issues not
resolve a Physical Evaluation Board may be required. ” An MRI was performed on 23
February 2001, with findings as follows:

. may be released from active duty with authorization for

. “. 

“The sagittal images demonstrate intervertebral disk desiccation and vacuum disk

L5-Sl. There is also end plate degenerative change visualized at

L5-Sl. Vertebral body height and alignment are normal. The central bony canal

phenomenon at the level of 
the level of 
is patent. The 

conus medullaris terminates at the normal anatomic level.

Axial images of 
L2-3, L3-4, 
central bony canal and neural 

LA-5, and 
foramen are patent.

L-S1 demonstrate bilateral facet arthropathy. The

IMPRESSION: Multilevel lumbar spondyloarthropathy most severe at the level of 

L5-S 

1. 
”

A pain clinic note dated 26 February 2001 indicates that Petitioner had pain radiating from
his lower back to his legs, right greater than left, with an intensity of 3-4 on a scale of 10.
The pain was exacerbated by movement and prolonged sitting and standing, and it was
relieved by rest. Reportedly, his left leg became numb after 15 minutes of driving. The
pain was described as stabbing, pulling and burning. Petitioner indicated that he was able to
sleep at night, but only in certain positions. He was examined and found to be in no acute

2

sensor-mm, negative straight leg test, positive left facet

distress. He had full strength, normal 
loading and sacroiliac joint pain. He was given a diagnosis of chronic low back pain, and
prescribed an anti-seizure medication (apparently for neuropathic pain), a narcotic analgesic,
and  “LESI”. He was released from active duty on 26 February 200 1. A medical record
entry dated 28 February 2001 indicates that Petitioner was to undergo lumbar epidural
injection of steroids for his lower back condition, which would be performed over a 2 month
period and require a total of three visits to the pain clinic, with four weeks between visits.

e.

Petitioner contends that following his release from active duty,

he  was denied

 

treatment at military medical facilities. He was told that he was ineligible for treatment,
despite the  “authorization ” granted by a Navy physician on 20 February 2001, as noted
above. In addition, he reportedly had difficulty obtaining medical care from the Department
of Veterans Affairs (VA) because of uncertainty over his military status. He was required to
go on extended sick leave from his civilian job during the latter part of May 2001 because of
his back pain, and faces termination from that position on 21 December 2001, because he has
not been cleared to return to work. VA treatment records indicate that the
associated with his disk disease have worsened since February. His pain has increased, his
left leg is weaker, and he has trouble walking because of a foot drop. He occasionally falls
down. He had positive straight leg raise findings at 10 degrees of elevation on the left and at
40 and later at 20 degrees on the right; an abnormal gait; and decreased strength in the left
leg, with atrophy of the left thigh muscles. Neurological testing results were abnormal, and
compatible with a radiculopathy of the 
L.5 nerve root of the left, with mild changes on EMG
testing which are suggestive of active denervation and decreased (neurogenic) recruitment. 
It
was felt that in view of Petitioner ’s motor deficit, neurosurgical intervention might be
indicated.

’symptoms

f.

In correspondence attached as enclosure 

(2), a captain, Medical Service Corps, U.S.
Navy, by direction of the Medical Officer of the U.S. Marine Corps, advised the Board that
- upon review of the information provided, 
” there is not enough information to make a
determination on granting ” Petitioner ’s request.He noted that the results of the two 
Petitioner underwent while on ADSW are 
symptoms were the same. He noted that 
tire 
(NOTE: 

MFU
,not significantly different, and that his physical
there. “is no medical documentation pertaining [sic]
SNM routine medical evaluation which is generated during discharge from active duty. 
”

The VA records described above were not available when he reviewed the file.)

g-

In correspondence attached as enclosure 

(3), the Board was advised by the Head,

Military Law Branch, Judge Advocate Division (JAD), HQMC, in effect, that Petitioner was
voluntarily released from ADSW on 26 February 2001. Six days prior to his release from
., MC, USNR, and was cleared for release from
active duty, he was seen by LCDR M.. 
active duty with authorization for continued care of medical conditions which began during
active service. LCDR M. . . also indicated that if the medical conditions did not resolve,
Petitioner might eventually become the subject of a physical evaluation board 
author ’s opinion, Petitioner was wrong in his assertions that he had been erroneously or

(PEB). In the

3

unjustly released from active duty, and that he will not be able to receive treatment for his
continuing medical condition. He noted that LCDR M.. 
was recently contacted by JAD
. 
personnel regarding Petitioner ’s assertions, and the physician again reviewed Petitioner ’s
medical records and specifically stated that Petitioner did not suffer from a medical condition
warranting treatment while on active duty. Furthermore, LCDR M..
. indicated that Petitioner
 
has been eligible for continuing medical care since his release from active duty, and that
Petitioner need only report to an appropriate military medical provided and present his
medical clearance for release from active duty to receive treatment. The author of enclosure
(3) stated that all procedures effecting Petitioner ’s discharge [sic], specifically, being
medically cleared for release from active duty, were in accordance with Bureau of Medicine
regulations.
In addition, he noted that Petitioner had been the subject of a military police
investigation prior to his release from active duty, for taking and failing to report 121 days
of annual leave; engaging in unapproved civilian employment; and using false medical
appointments as an excuse to remain away from duty. The investigation was 
founded” by military police investigators on 15 February 2001, and the results were referred
to the Commanding Officer, HQBN, HQMC. To date, that officer has not preferred charges
or taken any other disciplinary action against Petitioner. Should Petitioner return to active
duty, the CO, HQBN, HQMC, will be required to dispose of Petitioner
’s misconduct in
accordance with the UCMJ and the Manual for Courts-Martial. In conclusion, the author
enclosure (3) recommended that the requested relief be denied.

“closed as

of

in

h.

In response to enclosures (2) and 

(3), Petitioner contends, in effect, that he was
entitled to be retained on active duty for continuing treatment of his back and esophageal
conditions. He believes enclosure (3) is flawed, fraught with misinformation, threatening
tone, and designed to assassinate his character, without providing accurate medico-legal
information. He believes that the opinion was designed to divert attention from the fact that
this is a medical case. He feels that the inclusion of information concerning the military
police investigation was unwarranted and malicious, and that the information has no bearing
on the issues presented in his petition. He states that medical authorities called for his
return to active duty (in October 2000) after it became evident that he had serious unresolved
medical problems when released from active duty. Members of the Reserve Affairs staff at
HQMC, in response to the call for his return 
put him in a regular leave status. They had found leave which had not been cleared  “off the
books” because of administrative error, and ’ he was placed on leave because it was easier for
them to do so than to  “cut a completely new medical orders package. ”Once they realized
their error, an investigation was started on the premise that he had contrived a way to get
additional leave. In his opinion, this was an attempt to cover their mistake. He contends
(3), and that only
that the investigation did not pertain to the allegations listed in enclosure 
the wording of the first allegation listed therein is  “anyway near ” to what was actually stated
as part of the investigation. The other two allegations listed  “were never told to me to be
part of any investigation against me. ” He submits copies of two sworn statements he made
during the course of the investigation, which he believes speak for themselves. He states that
the implication that there are outstanding charges against him, and the insinuation that he left
active duty in order to escape punishment, are rubbish.

.to active duty in a medical status, decided to

He states that the CO, HQBN,

4

HQMC, made the decision to  “drop the allegations ” after being advised by Petitioner to
charge him so that he could respond within the military justice system, or drop the
allegations. He notes that he would not have been permitted to leave active duty had charges
been pending against him. He states that some of the comments contained in enclosure (3)
reek of blackmail 
.tactics. He states that he requested a copy
of the report of investigation, but was told by the CO, HQBN, HQMC, that he could not be
given a copy because no charges had been preferred, and that the investigation had been
closed and was to be expunged. He states he was also told that the investigation 
“could not
be brought up again ”. He maintains that the findings of the investigation are irrelevant to his
request for correction of his record, and asks the Board to ignore results of the
investigation.

.type threats and strong-armed 

. for about 10 minutes on 20
. 

’s treating

’s

i.

Petitioner contends, in effect, that he was not voluntarily released from active duty
200 1, as is erroneously stated in enclosure (3). He maintains that he was

. reviewed some information on his computer, and the sent Petitioner

2001. He had not seen that physician before that date, and he has not seen him

on 26 February 
denied treatment at a Navy pain clinic on 28 February 2001 because he did not have the right
status in their entitlements computer system, due to his release from active duty to the
Individual Ready Reserve. He indicates that he saw LCDR M.. 
February 
since then. LCDR M.. 
on his way. LCDR M... did not see any of the information provided by Petitioner
physicians after 20 February 2001, pertaining to the severity of his condition, treatment
regimen, and future treatment needs. In addition, he brought LCDR 
M...‘s “authorization ”
letter to three clinics at NNMC Bethesda, where he had been treated prior to his release from
active duty, and was told that he was not entitled to receive treatment. He appealed that
determination to the Chief of Hospital Administration, but was unsuccessful. Official
assigned to the Patient Advocate ’s office attempted to secure care for him, but were unable
to do so. He was then directed to the Bureau of Medicine and Surgery, Code 25, but again
met with no success. After being denied support from within the command structure of the
Marine Corps Reserve, he filed his petition with the Board. He notes that he has been under
the care of the VA for the past six months. Appointments at VA facilities are scheduled
months apart, hospital resources are limited, and the quality of care available at those
facilities is mediocre at best. His back and leg conditions have degenerated since he was
released from active duty, and he was forced to take sick leave from his civilian position
during late May 2001. He was subsequently placed on leave without pay, and his civilian
employment is scheduled to be terminated on 21 December 2001 because of his inability to
work a full day. He wants his petition to be granted so that he will be able to receive quality
medical care and a fair assessment of his physical status. He notes that if Marine Corps
officials are worried about his reaching the 18 year sanctuary, which would require his
retention on active duty until he completes 20 years of active duty service, they should not
be, as he signed a waiver of his sanctuary rights when he entered on active duty in 1997, and
he would be willing to sign another waiver. He submits a detailed personal statement in
which he describes the incapacitating effects of his lower back and esophageal condition.

i Petitioner’s Career Retirement Credit Record reflects that he has accrued 4968

5

active duty points, which equates to 13.8 years of active duty service.

k DOD Directive 124 1.1, Reserve Components Incapacitation Benefits, (reference

(b) ), paragraph 6.2, provides, in effect, that a Reserve member who is hospitalized or
1 days or longer shall be
becomes incapacitated while on active duty orders for a period of 3 
retained on active duty until qualified to return to full military duty, or until final action has
been taken by the disability evaluation system (DES). Paragraph 4.3.3 provides that a
Reserve member shall be determined to be unable to perform military duties if, under
Service procedures, the member would be determined to be medically unfit for worldwide
(deployable) duty. Paragraph 6.5 provides that incapacitation for periods of over one year,
or permanently disabling conditions, should be processed as soon as recognized through the
DES for disability separation or retirement.

1.

The policies contained in reference 

(b) have been implemented in SECNAVINST

). It is

1770.3B, Management and Disposition of Incapacitation and Incapacitation Benefits for
Members of the Navy and Marine Corps Reserve Components, (reference (c) 
applicable to members of the Reserve components, including those on ADSW, but excluding
Training and Administration of Reserve (TAR) and Active Reserve (AR) personnel. Active
duty is defined as full-time duty in the active military service of the United States, limited to
active duty for training (ADT), initial active duty for training (IADT), and ADSW. Physical
incapacitation is defined as any medical impairment due to injury, illness, or disease,
regardless of degree, which reduces or precludes an individual ’s ability to perform the duties
of his or her office, grade or rating.
8b provides that a Reservist who incurs a
physical incapacitation while performing inactive duty training, while on annual training,
ADT, IADT (2nd increment),or ADSW orders for 30 days or less, or while traveling to or
from such duty must be released from duty no later than the conclusion of the period of duty
as stated on the order at the time the physical incapacitation  occurred and application for a
Notice of Eligibility (NOE) for disability benefits under the instruction has been applied for.
Paragraph 
continuous set of orders for 31 days or more is considered an active duty member and is not
normally eligible for an NOE. These members will be retained in an active duty status until
they are found  “fit for release ” or the PEB. has issued a notification of Decision per the
Disability Evaluation 

8c provides that a Reservist who incurs a physical incapacitation while on a

Paragraph 

ManuaI.

m. In several previous cases, the Board has authorized the issuance of an NOE to

Reservists who were not considered incapacitated at the time of their release from active
shortly thereafter, and were unable to continue their civilian
duty, but became incapacitated 
employment. It is notable, however, that those cases were decided when previous iterations
of the DEM were in effect. Under the provisions of those instructions, in cases where a
Reservists had not been retained on active duty and was not in receipt of an NOE, the PEB
would find the member physically qualified or not physically qualified, rather than fit for
duty or unfit for duty. A finding that the member was not physically 
in the member ’s discharge without entitlement to disability benefits administered by the
Department of the Navy, unless the member was eligible for Reserve retirement. The

qualifkd would result

6

1850.41), provides as paragraph 

3309b, that a service
current regulation, SECNAVINST 
member who has served on active duty for 30 [sic] days or more, has been released from
active duty, and is now in an inactive duty drilling status and requests referral to the PEB for
a condition alleged to have been incurred or aggravated while on active duty, shall be
processed into the DES and the PEB shall determine and record whether the member is fit or
unfit for continued service. Reservists in this instance who are found unfit for duty warrant
disability retirement or separation pay.

CONCLUSION:

Upon review and consideration of all the evidence of record and notwithstanding the
(3), the Board concludes that Petitioner was
comments contained in enclosure (2) and 
incapacitated prior to his release from active duty, and not fit for release from active duty.
In this regard, it notes that Petitioner had a moderate to severe degenerative condition of his
lower spine, which has increased in severity since his release from active duty and is likely
to result in the loss of his civilian employment and termination of his military career.
In
addition, it notes that the physician who cleared him for separation did so with the proviso
that he be authorized continuing care for conditions incurred on active duty. He indicated
that Petitioner was in need of continued medical treatment in the pain, chiropractic, physical
medicine/physical therapy, and neurosurgery clinics, as well as potential follow-up with the
gastroenterology department, and that referral of Petitioner to the physical evaluation board
might be required should his medical issues not resolve. The Board believes the physician ’s
determination that Petitioner was fit for release from active duty would have been different
had he not been under the mistaken belief that Petitioner would continue to be entitled to
medical care from military health care providers.

Given the chronic nature of Petitioner ’s conditions, and the length of time he has been
incapacitated, the Board believes that he should be referred to the DES as soon as possible
for a determination of his fitness for duty and entitlement separation or retirement by reason
of physical disability.

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 released from
active duty for special work on 26 February 2001, and that he has been retained on active
duty since that date.

b. That Petitioner be evaluated by a medical evaluation board (MEB) within sixty days
of the date of approval of this recommendation, and that the findings and recommendation of
the MEB be referred to the Physical Evaluation Board for action.

7

. Tha t 

so much of Petitioner

be 

d & ied.

’s request for corrective action as exceeds the foregoing

d . Tha t a copy of 

th is R eport of Proceedings be filed in Petitioner

naval record.

’s 

m w as present at 
the Boa rd ’s revie w  and
m p lete 
recurd o f t he  Boa rd ’s proceedings

deliberations, and that
in  the above entitled

4 .
It is certified that a quoru
the foregoing is a true and co
m atter.

ROBERT 
R ecorder

D. 

ZSAL MAN

5 . The  fo regoing report of the 

Boa rd  is sub m itted for your revie

w  and action.

Executive 

D irect0

R evie w ed and approved:

JAN  9 

2002

JOSEPH 

Q. LYNCH

Assihnt; 

GeneM counsel

(Manpower And 

Rosewe  

Affairs)

8