DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL RECORD

NAVY 

ANNEX

2 

WASHINGTON DC 20370-510

0

S

JRE
Docket No: 5132-00
15 January 2002

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 9 January 2002. 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. In addition, the Board
considered the advisory opinion furnished by the Director, Naval Council of Personnel
Boards, dated2 August 2001, a copy of which is attached, and your response thereto.

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, as well as the rationale of the hearing panel of the Physical
Evaluation Board which considered your case on 22 April 1999. A copy of that rationale is
also attached.

In addition to the above, the Board concurred with the finding of the Judge Advocate General
of 22 October 1998, that you were not entitled to a Notice of Eligibility (NOE) for Disability
Benefits. The statement of the Judge Advocate General that you may be awarded disability
retirement or severance pay if the Physical Evaluation Board determines that your condition
was incurred or aggravated during a period of continuous active duty of more than 30 days
does not provide any basis for granting your request.
2038b, which defines the term  “while entitled to
to SECNAVINST 
receive basic pay ”, and provides that the term shall not be construed to entitle any member
not on active duty, who, at the time of separation from active duty,was considered fit to
continue naval service, to benefits under 10 U.S. Code, chapter 61, because of an increase in

In this regard, your attention is invited

1850.41), paragraph 

impairment occurring while the member was not entitled to basic pay. The Board was not
persuaded that you were unfit for duty when your periods of extended active duty terminated,
or that any condition incurred while you were on extended active duty recurred during
subsequent periods of service, or was aggravated thereby.
It concluded that the issue of
compensation for injuries and/or illnesses incurred during your military service is within the
purview of the Department of Veterans Affairs, which awards benefits for conditions it
classifies as  “service connected”, without regard to the issue of fitness to perform military
duty.

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

DEPARTMENTOFTHE NAV
NAVAL COUNCIL OF PERSONNEL BOARD

720 

KENNON STREET SE STE 309

WASHINGTON NAVY YARD DC 20374-502

Y

S

3

5240
Ser:
2 Aug 01

01-22

From:
To:

Subj:

Ref:

Director,
Executive Director,
Naval Records

Naval Council of Personnel Boards

Board for Corrections of

REQUEST FOR COMMENTS AND RECOMMENDATIONS IN THE CASE
OF

(a) Your 
(b)  SECNAVINST  

1850.4D

ltr  JRE:jdh Docket No: 5132-00 of 7 Jun 01

This letter responds to reference (a) which requested

1.
comments and a recommendation regarding Petitioner's
request for correction of his records.
contends a Notice of Eligibility (NOE) should be granted
and a PEB be convened to determine if he has a spinal
injury or disease that was aggravated or incurred while on
active duty.

The Petitioner

The Petitioner's case history, contained in reference
2.
(a), was thoroughly reviewed in accordance with reference
(b) and is returned.

The following comments are provided:

a.

Per paragraph 3309 of reference  

(b),  Petitioner's

spinal condition would appear not to have rendered him
unfit for duty as an aviator while on active duty in either
the U.S.
from 1972 to 1982.
aviator duties.

Marine Corps from 1967 to 1971 or the U.S. Navy

This is particularly true for  

non-

b.

The major progression of the Petitioner's lumbar
spinal condition appears to have occurred subsequent to his
active duty service.
The Petitioner's current condition
post-
can be tied to the stresses associated with his  
service employment by Lockheed Martin.
especially aggravated by his  
acute trauma.

31 October 1996 work-related

His condition was

C .

Petitioner's cervical spine symptoms appear to

have largely developed over the  
his discharge from active duty and while in the employ of
Lockheed Martin and serving, intermittently, in a reserve

12 year period following

Subj:

REQUEST FOR COMMENTS AND RECOMMENDATIONS IN THE CASE
OF

status.
Insufficient evidence exists to support the
Petitioner's contention that his injuries were service
aggravated.

d.

By the time of the Petitioner's 1999 PEB process,

IINPQ"

for his duties in the U.S. Naval

his condition appears to have progressed to the point of
rendering him  
Reserve.
to be service aggravated,
have been appropriate.
pertaining to the issuance of  
of Commander,
General.

Since the Petitioner's condition does not appear
the denial of an NOE appears to
1770.3B,  issues

Naval Reserve Force and the Judge Advocate

Per SECNAVINST  

NOE's  fall under the purview

In summary,

3.
to be service aggravated.
under the purview of OJAG,
this time,
record.

the Petitioner's disability does not appear
The issue to grant an NOE falls
but would likely be denied. At

no change is recommended for the Petitioner's

W. F.

ECKERT

2

SAN DIEGO FORMAL PEB RATIONALE

The informal Physical Evaluation Board found the member not
physically qualified for retention in the Naval Reserves on
03 February 1999.

This member appeared before the formal PEB on 22 April 1999
requesting to be found unfit for duty under VA Codes 5299-5295
(lumbosacral strain) at 40%
syndrome) at  60% for a total of  80% disability and placed on the
PDRL.
give the member time to present additional medical evidence to the
board.

The member's formal board was continued to  

and 5299-5293 (intervertebral disc

28 April 1999 to

Accepted documentary evidence consisted of:

Exhibit A 
Exhibit B 
Exhibit C 
Exhibit D 
Exhibit E 
Exhibit F 
Exhibit G 
Exhibit H 

-
-
-
-
-
-
-
-

1850.4D  

PEB Case File
None
SECNAVINST 
Deleted
DOD F 1332.38, dated 14 Nov 96 pages 
Additional Medical Information
Additional Professional Data
Memo from CAPT J. S. Murphy dated 28 Apr 99

§ 1002, 1003  

& 2004

21,35,36,40

The member appeared before the formal board without ever having
had a medical board.
for his neck injury was denied.
for lumbosacral strain and cervical intervertebral disc syndrome.
These will be addressed seriatum.

The member requested to be rated

the member's request for an NOE

Furthermore,

the member traces his lower back pain to May 1973 when he

with respect to the member's "lumbosacral strain", it must

First,
be noted that the member does not have lumbosacral strain.
Rather,
alleges an accident in ejection seat training while in AOCS.
There is no record of this accident,
back pain a few days after the alleged event.
that the member continued to serve on active duty from AOCS in
1973 until 1982.
1974 which found him NPQ for his back.
and was found PQ and allowed to fly in non-ejection seat aircraft
After that time, the
which he did on active duty until 1982.
member continued to serve in the reserves.
receiving a 10%
condition"

while he has continued to serve in the reserves.

The member had a board of flight surgeons in

disability from the VA for a "spinal disc

but the member complained of
It must be noted

The member appealed that

The member has been

The member testified that all his fitness reports were in the top
1% until he stopped drilling in March 1997.
that his cessation of drilling status was secondary to his neck
surgery.
that he could not perform his duties because of his back.

while a reservist,

did the member assert

At no time,

The member testified

The

member performed and passed all  
October 1996.

PRTs  until his 50th birthday in

In the member's appeal letter of 28 August 1998, the member
references an evaluation done in April 1994 by his neurosurgeon,
His private neurosurgeon states quite clearly
Dr. Mehdizadeh.
that the member has degenerative joint disease of his lumbosacral
spine and not a lumbosacral strain.
continued to serve in the reserves after that time and at no time
failed to carry out his duties because of his lumbosacral
degenerative joint disease.
the member's record that he ever failed to carry out his assigned
duties because of problems with his lower back.

the member

Moreover,

There is no documentation anywhere in

The member also wished to be rated for his cervical intervertebral
The member has a report of disability from his
disc syndrome.
Dr. Mehdizadeh, dated 29 May 1997 that
civilian neurosurgeon,
states the member's neck complaint was a result of an injury at
his civilian job lifting boxes out of his car on 31 October 1996
(note for the record that, in another report, Dr. Mehdizadeh
states that the injury occurred on 1 November 1996).
of this injury,
was operated on 27 January 1997 with a diskectomy and fusion at
the 

the member suffered a 

C6-7  levels.

C5-6  and 

C5-6  disc herniation which

As a result

The member was also observed looking down

The member appeared at the formal board with normal motion in both
arms and without any apparent muscular wasting or asymmetry in his
The member was able to look left and right a
upper extremities.
minimum of 45 degrees.
enough to read documents on the table in front of him.
no documentation in the record that the member is unfit to carry
out the duties of a Captain in the United States Navy.
initially testified that he was unable to move his neck in spite
of the observations of the formal board.
continuance (to be discussed infra), the member testified that he,
can move his neck but refrains from doing so because he
in fact,
claims it causes pain.

A week later, after a

There is

The member

There are no data to suggest that the member's herniated nucleus
The
pulposus was in any way related to his naval service.
member's own claims,
make clear that the member sustained an acute injury at his
civilian job.
surgery,
the Navy.
aggravation.
denied an NOE.

during which time the member was not on active duty in

This is consistent with the member's having been

there was no opportunity for any service

*There were only 88 days between the injury and the

corroborated by his civilian neurosurgeon,

Thus,

The member asserts some sort of Navy duty aggravation, but this
simply flies in the face of the evidence which clearly indicates
an acute injury while working as a civilian.

Even by a clear and

the proximate cause of the injury

if the proximate cause of the

DOD instruction 1332.38 subparagraph

this condition would not be ratable.

any resulting disability
even stipulating that the member is
Most importantly,

convincing standard of evidence,
was the civilian job.
E3.Pl.3.4.1.3.2.  makes clear that,
injury is unrelated to naval service,
would not be ratable.
unfit,
there were no data to suggest that the member is currently unfit
due to this condition.
surgery and has no evidence that he cannot do routine duties in
the United States Naval Reserve.
a flight status which constitute special duty and are not the
focus of the formal board.
reports have always ranked him in the top 1% up to his last drill
in March 1997.
performed at or above standards.
of his neck surgery,
regardless of his history of back pain.

but the member always performed adequately

by the member's own testimony, he has

The member appears to have had successful

The member testified that his fitness

This does not address duties in

The member was found NPQ because

Thus,

Thus,

At the close of the initial hearing, the member stated that he
felt the hearing had been inadequate because he had pertinent
information that had not been presented to the formal board.
member characterized this information as corroboration of his
alleged disability.
continuance to allow the member to present the information he
deemed pertinent to his case.
1999 with his information in the form of Exhibits F, G, and H.

The formal board granted a one week

The member returned on 28 April

The

Remarkably,

Exhibit F contained various X-ray reports, MRI reports and Dr.
Mehdizadeh's notes,
all of which had already been referenced,
excerpted or summarized in the PEB case file or in the previously
submitted exhibits.
the reports from the member's
civilian neurosurgeon contained in Exhibit F reinforce the
A 29 December 1997 letter from Dr. Mehdizadeh
member's fitness.
notes the member's low back complaints since 1973 and reports that
the member was able to function in spite of "flare-ups lasting 1
to 3 days at times."
dated 1 November 1996 at the member's civilian job while unloading
boxes from the trunk of his car.
cervical fusion on   28 January 1997.
things:
the member's neck injury was at his civilian
employment and was an acute injury requiring surgery within 90
days during which the member was not on active duty.
was simply no opportunity for any service aggravation.

The letter then notes the acute injury here

This letter reinforces two

This led to the member's

First,

Thus,

there

There is also a progress report from Dr.
1994 which references an EMG and MRI showing mild 
and degenerative joint disease at the 
evidence of herniation.
This is very significant because the
member continued to serve adequately in the United States Naval
Reserve for almost three more years.

By the member's own

L5-Sl  disc space, but no

Mehdizadeh dated 5 April

Sl radiculopathy

testimony,
surgery.

he continued to drill until found NPQ for his neck

The exhibit is quite remarkable in that it

Exhibit G was a biography of significant assignments and
accomplishments.
totally refutes the member's claims to a disability derived from
his 1973 "back injury."
how the member has performed quite well from AOCS until the mid
No where is there one scintilla of evidence to suggest
1990s.
that the member has ever been unable to perform because of his
"back problem."

in fact,

It is,

an unrelenting tale of

"objective medical evidence."

the member refers to

It must be established that the medical disease

it is of paramount importance to

In Exhibit H,
The objective medical evidence shows the member has some
degenerative joint disease in his lumbosacral spine. In
evaluating any individual,
remember that the mere presence of a diagnosis is not synonymous
with disability.
or condition underlying the diagnosis actually interferes
significantly with the member's ability to carry out the duties of
his rank and rate.
member's fitness is Navy-wide.
subjective standard tailored to each individual.
idiosyncratic,
The issue is not whether the individual is one hundred percent of
some previous level of performance, but rather whether the member
meets the minimum Navy standards of performance.
evidence of fitness is the fact that this member has served
adequately in active and reserve components of the United States
Navy from 1973 until 1997 and never failed to carry out his duties
because of his back.

The performance standard for evaluating a

The standard is not an

The best

Objective medical evidence also shows unequivocally that the
member's neck injury was suffered at his civilian job.
acute injury that led to surgery within 90 days while the member
was not on active duty.
Moreover,
aggravation.
member is unable to serve now, because the record indicates
successful surgery.
is likely the board would accommodate him.
makes pellucidly clear that he is not interested in continued
service.
claims that he cannot even put on his underwear by himself.

Thus,
there is no evidence to show that the

If the member were asking to be found PQ, it
the member

the member requests 80% disability.

there is no possibility of service

However,

In fact,

It was an

The member

a

after careful consideration of all relevant medical
the formal board finds that the member is not physically

Therefore,
evidence,
qualified for his cervical intervertebral disc disease with
limitation of mobility and chronic pain syndrome.
ratable condition as it is unrelated to naval service.
the formal board notes for the record its unanimous opinion that
the members complaint of low back pain is not in any way a
separately unfitting condition.

This is not a
Further,

Subj:

DISABILITY
BOARD ICO

AUTHENTICATION

ALUATION

OTHER PANEL MEMBERS:

(
COL 

@ATRICIA  WILLIAMS, USMCR

COUNSELING CERTIFICATION:

ALL COUNSELING REQUIREMENTS OF
SECNAVINST 

1850.4D  HAVE BEEN MET.

MEMBER'S STATEMENT OF UNDERSTANDING:

I understand that the finding of NOT PHYSICALLY QUALIFIED is
subject to legal and Quality Assurance reviews, and approval by
the President of the PEB.
President, PEB,
if a Petition for Relief from Final Action
the Director of the Naval Council of Personnel Boards (NCPB). A
PFR must be received by the Director no later than 15 days from

The findings letter, signed by the
is the final determination and can only be changed

(PFR) is accepted by

.

determination. I

been
ns of paragraph 5005 of SECNAVINST 

have

counseled
1850.4D.

FOR ACTIVE DUTY MEMBERS
HOLDING MEMBER'S SERVICE RECORD.

 

-

COMPLETE MAILING ADDRESS OF COMMAND

FOR TEMPORARY DISABILITY RETIRED LIST
HOME ADDRESS AND DAYTIME PHONE NUMBER.

(TDRL) MEMBERS, COMPLETE

DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL RECORD

S

2 NAVY ANNE

X

WASHINGTON D

C 20370-510

0JRE:jdh
Docket No: 5132-00
16 January 2002

Enclosed is a copy of a letter  
his application has been denied.

t

as attorney,

in the case of

informing him that

It is regretted that a more favorable reply cannot be made.

Sincerely,

W. DEAN PFEIFFER
Executive Director