DEPARTMENT OF THE NAVY
                    BOARD FOR CORRECTION OF NAVAL RECORDS
                                2 NAVY ANNEX
                          WASHINGTON DC 20370-5100

                                                   JRE
                                                   Docket No: 5069-02
                                                   24 February 2003



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 13 February 2003. Your
allegations of error and injustice were reviewed in accordance with
administrative regulations and procedures applicable to the proceedings of
this Board. Documentary material considered by the Board consisted of your
application, together with all material submitted in support thereof, your
naval record and applicable statutes, regulations and policies.

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 rationale of the hearing panel of
the Physical Evaluation Board (PEB) which considered your case on 15 April
1996, a copy of which is attached. It concluded that your sleep apnea
condition was properly rated at 10%. In noted that your receipt of
substantial disability ratings from the Department of Veterans Affairs (VA)
is not probative of the existence of error in your Navy record, because the
VA assigns ratings without regard to the issue of fitness for military
service. As you have not demonstrated that your sleep apnea condition was
ratable above 10%, or that any of your other conditions rendered you unfit
for duty, the Board was unable to recommend any corrective action.
Accordingly, 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 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
RATIONALE:

THE MEMBER IS A 36 YEAR OLD LT, SC, USN WITH ABOUT 12 AND 1/2 YEARS
OF SERVICE AT THE TIME OF HIS APPEARANCE BEFORE A MEDICAL BOARD AT
BETHESDA NAVAL HOSPITAL ON 12 FEBRUARY 1996 WITH THE DIAGNOSES:

    (1)     OBSTRUCTIVE SLEEP APNEA;
    (2)     NECK STIFFNESS, POPPING AND CLICKING;
    (3)     DIABETES MELLITUS;
    (4)     MEMORY COMPLAINTS;
    (5)     RIGHT ELBOW PAIN, SENSORY SYMPTOMS; AND
    (6)     BILATERAL KNEE PAIN.

THE PEB RECORD REVIEW PANEL CONSIDERED THE CASE ON 15 APRIL 1996
AND FOUND THE MEMBER FIT FOR DUTY BASED ON THE PRESUMPTION OF
FITNESS CONTAINED IN SECNAV INSTRUCTION 1850.4C, Paragraph 2056.
THE MEMBER DISAGREED WITH THIS FINDING AND REQUESTED A FORMAL
HEARING.

A FORMAL HEARING WAS CONDUCTED 3 SEPTEMBER 1996 WITH CAPTAIN W. H.
FISHER, USNR, AS PRESIDING OFFICER AND COLONEL E. G. BEINHART, III,
USMC, AND CAPTAIN L. E. MCCRACKEN, MC, USN, AS PANEL MEMBERS. THE
MEMBER WAS REPRESENTED BY LIEUTENANT A. R. STONE, JAGC, USNR.

THE MEMBER APPEARED AT THE FORMAL HEARING CONDUCTED 14 AUGUST 1996
REQUESTING TO BE FOUND UNFIT FOR DUTY WITH DISABILITY RATINGS OF
20% UNDER V.A. CODE 5299—5003(5290), 20% UNDER V.A. CODE 7913, 10%
UNDER V.A. CODE 8099-6520, AND 10% UNDER V.A. CODE 9311 FOR A TOTAL
RATING OF 50% AND PLACEMENT ON THE TDRL. THE MEMBER ALLEGED THAT
HE REPORTED TO HIS CURRENT COMMAND IN JULY 1992, AT WHICH TIME HIS
PERFORMANCE WAS EXCELLENT AS NOTED IN HIS FIRST FITNESS REPORT OF
JUNE 1993; THAT HE BEGAN FALLING ASLEEP IN MEETINGS AND WHEN PUT ON
HOLD ON THE PHONE; THAT HE FELL ASLEEP WHILE DRIVING AND SWERVED
AND ALMOST RAN HIS EXECUTIVE OFFICER OFF THE ROAD; THAT HE WAS
REFERRED FOR MEDICAL EVALUATION BUT THE EVALUATION WAS NEGATIVE AND
THE SYMPTOMS ATTRIBUTED TO GRIEF AND DEPRESSION; THAT HE WAS GIVEN
AN ANTIDEPRESSANT AND A SEDATIVE THAT MADE THE SYMPTOMS WORSE; THAT
HE WAS REMOVED FROM HIS JOB AND SENT BACK FOR ADDITIONAL
PSYCHIATRIC AND NEUROLOGIC EVALUATION, AT WHICH TIME A SLEEP STUDY
CONFIRMED A SEVERE OBSTRUCTIVE SLEEP APNEA; THAT HE WAS MARKED DOWN
ON HIS SECOND FITNESS REPORT BECAUSE OF THE DECREASED PERFORMANCE,
WHICH RESULTED IN HIS FAIL TO SELECT FOR LIEUTENANT COMMANDER; THAT
SUBMISSION OF THE MEDICAL BOARD WAS DELAYED BECAUSE THE ORIGINAL
DOCTOR GOT OUT OF THE NAVY AND BECAUSE HIS REFERRAL AND EVALUATION
BY NEUROLOGY WAS DELAYED; THAT HE STILL HAS SLEEP PROBLEMS AND
DECREASED ENERGY, ESPECIALLY WITH COLDS; THAT DURING THE PERSIAN
GULF WAR HE FELL THROUGH A SCUTTLE AND LATER DEVELOPED NECK AND
KNEE PAIN; THAT HIS NECK STIFFENS UP REQUIRING HOT SHOWERES AND
HEATING PAD THERAPY; THAT HE DID NOT COMPLAIN ABOUT THE KNEES AND
NECK BECAUSE HE WAS AFRAID HE MIGHT BE PUT OUT OF THE NAVY; THAT
                                      1


                                                     Enclosuer (1)
NOW HE CANNOT JOG OR RUN AND HAS DIFFICULTY WITH STAIRS AND WALKING
LONG DISTANCES; THAT HE HAS BEEN DIAGNOSED WITH DIABETES AND WILL
BE GETTING BLOOD SUGAR TESTING MACHINE; AND THAT HE HAS PROBLEMS
RECOGNIZING PEOPLE AND REMEMBERING THEIR NAMES AND TENDS TO FORGET
THINGS UNLESS HE WRITES THINGS DOWN. TO SUPPORT HIS REQUEST THE
MEMBER PRESENTED MEDICAL BOARD ADDENDA FROM INTERNAL MEDICINE DATED
3 JULY 1996, FROM ORTHOPEDICS DATED 7 MAY 1996, AND FROM
OPHTHALMOLOGY DATED 9 MAY 1996, COPIES OF THE HEALTH RECORD ENTRIES
MADE SINCE THE SUBMISSION OF THE MEDICAL BOARD, COPIES OF HIS
FITNESS REPORTS, SHOWERS EVIDENCE LETTERS FROM HIS MOTHER-IN-LAW,
HIS BROTHER, FROM HIS DIVISION DIRECTOR, A CO-WORKER, AND FROM HIS
SECRETARY, AND A COPY OF AN AUTO INSURANCE DAMAGE APPRAISAL. THE
MEMBER ALSO MADE HIS HEALTH AND SERVICE RECORDS AVAILABLE FOR
REVIEW.

BECAUSE THE MEMBER HAD UNDERGONE NEUROPSYCHOLOGIC TESTING BUT THE
REPORT WAS NOT IN THE RECORD, THE HEARING WAS RECESSED TO AWAIT RECEIPT OF
THAT REPORT.

THE HEARING WAS RECONVENED ON 3 SEPTEMBER 1996 WITH COUNSEL FOR THE
MEMBER BUT WITHOUT THE MEMBER BEING PRESENT, AT WHICH TIME ADDITIONAL
EVIDENCE WAS SUBMITTED, INCLUDING THE NEUROPSYCHOLOGIC EVALUATION REPORT
AND A SHOWERS EVIDENCE LETTER FROM THE MEMBER’S FORMER COMMANDING OFFICER.

AFTER CAREFUL REVIEW OF ALL THE AVAILABLE EVIDENCE AND BASED ON  UNANIMOUS
OPINION, THE HEARING PANEL FINDS THE MEMBER UNFIT FOR FULL DUTY IN THE U.S.
NAVY BECAUSE OF PHYSICAL DISABILITY.

IT WAS THE UNANIMOUS OPINION OF THE HEARING PANEL THAT LT NEAFSEY OVERCOMES
THE “PRESUMPTION OF FITNESS” RULE. SECNAVINST 1850.4C STATES IN PART THAT
“THIS PRESUMPTION CAN BE OVERCOME IF IT CAN BE ESTABLISHED BY A
PREPONDERANCE OF EVIDENCE THAT THE MEMBER, IN FACT, WAS PHYSICALLY UNABLE
TO ADEQUATELY PERFORM ... EVEN THOUGH HE WAS IMPROPERLY RETAINED ... FOR A
PERIOD OF TIME.” THE MEMBER TWICE FAILED TO SELECT FOR PROMOTION TO LCDR
AND WAS TO BE SEPARATED ON 1 MAR 96. HIS MEDICAL BOARD WAS IN FEBRUARY,
1996, AND APPEARS TO MEET THE CRITERIA FOR “PRESUMED FIT”. HOWEVER, THE
HP WAS UNANIMOUS IN CONCLUDING THAT HE WAS IMPROPERLY RETAINED SINCE AT
LEAST 1993, WHEN HIS FITNESS REPORT SHOWS THAT HE WAS REMOVED FROM HIS
MAINSTREAM JOB AND MADE SPECIAL PROJECTS OFFICER. HIS COMMANDING OFFICER
ALSO GRADED HIM “B” IN MILITARY BEARING AND TOLD LT NEAFSEY THAT HIS CAREER
WAS OVER. HE HAD EMBARRASSED THE COMMAND BY FALLING ASLEEP DURING MEETINGS
WITH REPRESENTATIVES OF FOREIGN GOVERNMENTS. THE MEMBER’S FITREPS AND
SERVICE RECORD WERE EXCELLENT PRIOR TO 1993, HAVING BEEN AWARDED THREE
PERSONAL AWARDS (1 NCM, 2 NAMS). THE MEMBER REPORTED HIS PERFORMANCE
CONTINUED TO DECLINE AFTER 1993. HE STATED THAT PART OF THE PROBLEM WAS THE
MIS-DIAGNOSIS OF HIS MEDICAL CONDITION. AFTER HIS WIFE DIED BY HER
OWN HAND THE MEDICAL COMMUNITY FELT HIS ATTENTION AND SLEEP
PROBLEMS WERE A RESULT OF HER DEATH. HIS EXECUTIVE OFFICER
REPEATEDLY SENT HIM BACK TO THE MEDICAL COMMUNITY TO FIND THE


                                      2


ANSWER. HE WAS LATER DIAGNOSED WITH SEVERE SLEEP APNEA. HIS CPA?
MACHINE SETTING IS NEAR MAXIMUM.




              POST-1993 FITREPS CONTINUED TO SHOW A DOWNWARD TREND.
ADDITIONAL “B AND A “C” IN MILITARY BEARING AS WELL AS A “CONSISTENT” TREND
OF PERFORMANCE ENSURED HIS “FAILED OF SELECT”. AT THAT TIME THE MEMBER WAS
ALSO GIVEN “ODDS AND ENDS” PROJECTS WHICH FURTHER GUARANTEED A NON- PROMOTE
FITREPS. HE STATED HE WAS COUNSELED THREE TIMES.

THE MEMBER CLEARLY SHOULD HAVE BEEN SEPARATED IN 1993. HIS PERFORMANCE WAS
DOWN DRAMATICALLY AS A RESULT OF A MEDICAL CONDITION WHICH WAS NOT
IMMEDIATELY DIAGNOSED. HE WAS IMPROPERLY RETAINED BECAUSE IT WAS BELIEVED
HIS WIFE’S DEATH WAS THE REASON FOR DIMINISHED PERFORMANCE AND THAT
IMPROVEMENT WAS EXPECTED. THE REALITY IS A SEVERE CASE OF SLEEP APNEA
CAUSED HIS POOR PERFORMANCE AND HE SHOULD HAVE BEEN SEPARATED YEARS AGO.

THE SLEEP APNEA HAS IMPROVED WITH THE USE OF THE CPA? AND WILL PROBABLY
IMPROVE FURTHER AS THE MEMBER LOSES WEIGHT. IT IS APPROPRIATELY RATED AT
10% UNDER V.A. CODE 8099-6520.

THE NECK STIFFNESS AND POPPING, AS WELL AS THE KNEE PAIN, ARE LONG-STANDING
CONDITIONS THAT HAVE NOT PRECLUDED THE CONTINUED PERFORMANCE OF DUTIES.
THE DIABETES MELLITUS IS ADEQUATELY CONTROLLED WITH ORAL HYPOGLYCEMIC
AGENTS AND IS NOT CONSIDERED UNFITTING FOR DUTY. IT WILL ALSO PROBABLY
IMPROVE AS THE MEMBER LOSES WEIGHT. THE NEUROPSYCHOLOGIC TEST REPORT SHOWS
NO EVIDENCE OF NEUROPSYCHOLOGIC IMPAIRMENT. THEREFORE, THE MEMORY
COMPLAINTS ARE NOT CONSIDERED UNFITTING FOR DUTY. THE RIGHT ELBOW PAIN AND
LATERAL EPICONDYLITIS, AS WELL AS THE POST EXCISION LEFT DORSAL WRIST
GANGLION AND MILD OCULAR HYPERTENSION, DO NOT PRECLUDE
CONTINUED PERFORMANCE OF DUTIES. ALSO, THE BILATERAL SLUGGISH
PUPILLARY REACTION IS A LONG-STANDING CONDITION THAT WAS FIRST
NOTED IN THE RECORD ON AN OPHTHALMOLOGY EXAM IN JUNE 1988 (NOT 1993
AS INDICATED IN THE MEDICAL BOARD ADDENDUM), WHICH WAS WELL PRIOR
TO THE BEGINNING OF THE MEMBER’S DIABETES (NORMAL BLOOD SUGAR
DOCUMENTED IN 1990). THIS HAS NOT AND DOES NOT INTERFERE WITH THE
PERFORMANCE OF DUTIES. THEREFORE, ALL OF THESE CONDITIONS ARE
APPROPRIATELY CONSIDERED CATEGORY III CONDITIONS THAT ARE NOT
SEPARATELY UNFITTING OR CONTRIBUTING TO THE UNFITTING CONDITION
AND, AS SUCH, ARE NOT RATABLE.

THE UNFITTING CONDITION IS NOT CONSIDERED COMBAT RELATED.
        October 8, 1996




        I don’t see how this member was improperly retained, as stated in
        the HP rationale. I agree with the RRP that the Presumption of Fit
        applies.