DEPARTMENTOFTHE NAVY

BOARD FOR CORRECTION OF NA

 

20370-

Docket No: 4372-02
2 December 2002

NAVY 
WASHINGTON DC

2 

ANNEX

This is in reference to your request for further consideration of your original application for
correction of your naval record pursuant to the provisions of title 10 of the United States
Code, section 1552, and your new request for correction of your record to show that you
have served on active duty continuously since 29 March 1997.

A three-member panel of the Board for Correction of Naval Records, sitting in executive
session, considered your application on 15 November 2002. Your allegations of error and
injustice were reviewed in accordance with administrative regulations and procedures
applicable to the proceedings of this Board.
consisted of your application, together with all material submitted in support thereof, record
of the Board ’s consideration of your initial application, your naval record and applicable
statutes, regulations and policies.
furnished by the Director, Naval Council of Personnel Boards (NCPB) dated 27 August 2002,
a copy of which is attached, and your comments in response thereto.

In addition, the Board considered the advisory opinion

Documentary material considered by the Board

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; it affirmed its decision of 7 October 1999, and substantially
concurred with the comments contained in the advisory opinion from the Director, NCPB.

With regard to your request for restoration to active duty effective 29 March 1997, the Board
was not persuaded that you were not fit for release from active duty on that date, or that you
were unfit for duty during the 30 March 1997-10 January 1999 period.
It noted that you
underwent a physical examination on 25 March 1997, and were found physically qualified for
” You completed a Standard Form 93, Report of Medical History,
“separation from ADSW. 
in which you stated that your health was  “fair” at that time. Although you denied a,history of
“recurrent back pain ”, you disclosed a two month history of a lower back ache, with
intermittent relief. That condition was not considered disqualifying by the examining
physician. The Board noted that you received a fitness report for 29 March-30 November

“always a first class PFT performer. ”

1997 period which contains the comment that you were 
You apparently felt that you were in good physical condition during a substantial portion of
the period in question, as you completed a Annual Certificate of Physical Condition on 10
January 1999, in which you denied having had any injury, illness or disease in the past 12
months which required hospitalization or caused you to be absent from school, duty or
civilian occupation for more that 3 consecutive days; having been under a physician
having taken prescription medications in the past 12 months; or having any physical defect(s)
which might restrict your performance of active duty or prevent your mobilization.

’s care or

You clearly suffered from a long standing
The genesis of that condition had little if any

Your objections to the findings and conclusions of the Director, NCPB, were carefully
considered and found to be inapposite.
degenerative condition of your spine.
connection to your military service, and it was not was not incurred when you were entitled
It appears that you failed to make full disclosure of the nature and effects of
to basic pay.
your back condition to Navy or Marine Corps officials after you underwent spinal disc
surgery in 1990. Had you made full disclosure, the condition may have become subject of
medical scrutiny, which would have jeopardized your continued service in the Marine Corps
Reserve. In this regard, the Board noted you had you been referred for disability evaluation
in 1990, you would have been evaluated under the physically qualified for service in the
Marine Corps Reserve standard, which is much less stringent than the fitness for duty
standard applied when a condition is incurred while the service member is entitled to basic
pay. Your career may very well have been terminated at that point. The Board noted that
although you suffered acute exacerbations of your back condition during periods of military
duty in 1997 and 1999, you did not sustain any significant trauma to your spine during those
, and there was permanent aggravation of the preexisting
periods, you were not  “injured” 
The exacerbations of your condition, one
condition during those periods of military duty.
which occurred when you reached for your laptop computer, and the other occurring the day
following a period of vigorous physical exercise, were the natural result of the underlying
degenerative disease process and your advanced age, and undoubtedly would have occurred
regardless of your duty status.

His conclusion that you would
lit for duties appropriate to your grade and experience had your career continued

The Board was unable to conclude that the presumption of fitness would have been overcome
had your case been referred to the disability evaluation system in 1999 prior to your transfer
to the retired reserve. In formulating his opinion, the Director, NCPB, looked beyond the
period when you underwent an acute exacerbation of your condition, surgical treatment
therefor, and a the period of convalescence which ensued.
have been 
beyond the period of convalescence is reasonable, and was accepted by the Board. The
Board noted that the presumption of fitness was established for situations such as yours,
where a service member continues to perform his military duties until beginning processing
for mandatory separation or retirement, and then requests substantial disability benefits
because of an inability to perform the same duties.
published by the Director, NCPB, the deterioration of a preexisting condition coincident with
non-disability separation or retirement must meet the  “grave” standard applicable to acute

It also noted that, under policy guidance

2

conditions of recent onset.

In view of the foregoing, your application has been denied. The names and votes of the
members of the panel will be furnished upon request.

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
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.

 

subm.ission  of new and

Sincerely,

W. DEAN PFEIFFER
Executive Director

Enclosure

DEPARTMENT OF THE NAVY
NAVAL COUNCIL   OF PERSONNEL BOARDS

WASHINGTON NAVY YARD
KENNON  STREET SE RM 309

720 
WASHINGTON. DC 20374-5023

Director,
Executive Director,
Records

Naval Council of Personnel Boards

Board for Corrections of Naval

REQUEST
OF

FOR COMMENTS AND RECOMMENDATIONS IN THE CASE

ltr  JRE:jdh Docket No: 4372-02 of 13 Aug  

(a) Your 
(b) SECNAVINST 
(c)  SECNAVINST 

1850.4E
1850.4D

From:
To:

Sub-j:

Ref:

This letter responds to reference (a) which requested

1.
comments and a recommendation regarding Petitioner's request for
correction of his naval records.
should have been processed through the Physical Evaluation Board
(PEB)  system and he should have received a medical disability
rating for his medical  

cond_ition.

The Petitioner contends he

The Petitioner's case history,

2 .
was thoroughly reviewed in accordance with reference
The following comments are provided:
returned.

 

contained in reference (a),

REFER 

TO

REPLY 

IN 
522 0
Ser:
27 Aug 0

02-1 4
2

02

(b)  and is

which consisted of the formation of

predisposed the

The condition manifested early in his

a.

The Petitioner's record indicates he suffers from a

This likely,

congenital back condition,
an extra lumbar vertebra (L-6).
Petitioner to develop back-related symptoms that began prior to
his entry on active duty.
U.S. Marine Corps career with right-sided Sciatica and
eventually led to two lumbar disc surgeries in 1988 and 1999.
The Petitioner's condition improved with appropriate treatment.
He received a commendatory fitness report covering the period of
29 March through November 1997 and he received a "highly
recommended for promotion"
December 1997 through  
perspective he remained fit for duty.
been required to retire by regulation, it would have been
reasonable to expect,
that he would have been able to continue his active duty
service.

fitness report covering the 1

30 September 1998 time frame. From a PEB

Had the Petitioner not

with treatment and convalescence healing,

Subi:

REQUEST

FOR 

COMMENTS

 AND RECOMMENDATIONS IN THE CASE
__. ” 

-.--___ 

_.,.

-_

b.

A PEB finding of Fit is not the equivalent of "fit for

Additional treatment and convalescence issues along

full duty."
with their limited duty implications
be best addressed by the  

BUMED

 Senior Reserve Medical Officer.

in a reserve setting would

C .

The following questions were posed for review and are

addressed in order:

1) Was the Petitioner unfit for duty at the time of

his release from active duty in March  

1997?

Ans. No,

the Petitioner was suffering from an

exacerbation of his spinal condition,
well to Chiropractic intervention resulting in his maintaining a
high level of performance as documented in his fitness reports.

which reportedly responded

2) If so,

and he had been referred to the Disability

Evaluation System, the PEB, at that time, what would have been
the appropriate disposition of his case?

Ans.

Not applicable.

or were the symptoms of a spinal

LtCol

 Shaidnagle's

Although the Petitioner's

3) Was his condition incurred or aggravated while he

entitled to receive basic pay,
condition he experienced at that time merely an exacerbation of
a preexisting condition?
Ans.

If determined to be unfit,  

the Petitioner's spinal condition would have been found

condition would likely have been viewed as "aggravated" while he
was entitled to receive basic pay.
condition (at least a predisposition there to) existed prior to
service,
to be service aggravated by the PEB as a result of his long U.S.
Marine Corps Reserve service and the attendant demands normal to
U.S.
condition would not have resulted in an unfit finding at the
time.

Marine Corps duty.

It is noted that despite this fact, his

4) Was Petitioner unfit for duty when released from

active duty on 25 January  

1999?

Ans.

The Petitioner was suffering an  

though with more complications of his longstanding spinal
condition.
where retention on ACDU would not have been precluded.

His condition responded to treatment to the point

exacerbation

,

Subj:

REQUEST FOR COMMENTS AND RECOMMENDATIONS IN THE CASE
OF

5) Was the condition incurred or aggravated while he

was entitled to basic pay?

Ans.

See answer to number 3.

6) Had he been referred for disability evaluation

prior to his mandatory transfer to the retired reserve on 1
February 1999,
fitness detailed in paragraph 3305 of reference
been overcome?

was his condition such that the presumption of

 

Ans. No.

The Petitioner required a second lumbar

(c)  would have

disc surgery with a follow-up procedure due to post-operative
complications.
Petitioner's history and available post-
operative evidence suggests that with appropriate convalescence
recovery he would have been able to continue his active duty
service had he not been precluded from further retention
prohibited by regulation.

7) Did his spinal condition contribute to an early

termination of his military career?

termination prior to eligibility for retirement benefits.

Ans. No,

assuming the term "early" refers to

8) Did the condition amount to an acute, grave illness

or injury?

Ans. No.

This is the standard set in the

Department of Defense Instruction 1332.38 and used in reference
The Petitioner's condition does not reach this level of
(c) 
acuity.

*

9) Was there a

"serious deterioration" of a

preexisting condition during the presumptive period?

Ans. No.

There was an acute, significant

deterioration of his condition that was at worst transiently
"serious."
such deterioration would have to become "permanent" with at
least a 60%
here.

VASRD rating (cf.,  

To fulfill the intent of "serious deterioration,"

ref(c)),

 which was not the case

3

Subj:

REQUEST FOR COMMENTS  
OF

AND RECOMMENDATIONS IN THE CASE

10) Were there injuries to petitioner's spine during

the 1 October 1996 through 31 March 1997 and 11 through 25
January 199 periods?

Ans.
"damage or wound to the body, traumatic in origin."

Paragraph 2039 of reference (c) defines

No.

an injury as
In both instances,
injuries,
underlying intervertebral disc disease process.

which were likely superimposed on a significant

relatively trivial trauma resulted in

d.

The Petitioner's request to show that he served on
continuous active duty since 29 March 1997 or 10 February 1999
is not a determination that falls within the purview of this
command.

In summary,

the Petitioner was likely presumed fit from a

3.
PEB perspective when he was released from active duty.
insufficient evidence in the Petitioner's file to establish that
his condition was serious enough to overcome the presumption of
fitness rule.
BCNR application be denied.

Accordingly,.

I recommend that the Petitioner's

There is