DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2
NAVY
ANNEX
WASHINGTON DC 20370-5100
JRE
Docket No: 5192-99
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 10 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 dated 7 November 2000, a copy of which is attached, your rebuttal thereto, and the
comments of your counsel.
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. Although it appears that you had an ear infection during a period of
annual training, the Board was not persuaded that you were unfit for duty because of an
otologic or other condition that was incurred while you were entitled to basic pay.
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
DEPARTMENT OF THE NAVY
NAVAL COUNCIL OF PERSONNEL BOARDS
WASHINGTON NAVY YARD
KENNON STREET SE RM 309
‘720
WASHINGTON. DC 20374-5023
5420
Ser: 00-21
7 Nov 2000
From:
To:
Director,
Executive Director, Boa
Naval Council
of Personnel Boards
rd for Correction of Nava
1 Records
Sub] :
REQUEST FOR COMMENTS AND RECOMMENDATION IN THE CASE OF FORMER
Ref:
(a) Chairman,
(b) SECNAVINST
BCNR JRE:jdh DN:
1850.4D
5192-99
ltr of 26
Jul 00
This responds to reference (a) which requested comments and a
1.
recommendation regarding petitioner's request for correction of her records
to show that she was entitled to disability retirement at the time of her
discharge from the naval service in April 1998.
determined that the evidence in this case does not support the petitioner's
request for a change to records to reflect entitlement to disability retired
pay.
We have tentatively
2. The petitioner's case history,
reviewed in accordance with reference (b) and is returned.
comments and recommendations are provided.
contained in reference (a), was thoroughly
The following
a.
There are two primary issues in this case.
Did petitioner's
The first issue is difficult to answer given the apparent
was her unfitting condition incurred or aggravated while she was on
otologic condition render her not physically qualified/unfit for duty?
if SO,
active duty?
inconsistency between
not physically qualified for retention,
7.
fitness report for the period after March 1996 contributes to the uncertainty
resgarding petitioner's fitness/unfitness.
BUMED's January 1998 determination that petitioner was
and her subsequent advancement to
, an act which normally presumes fitness.
The absence from the record of a
And
E-
b.
The evidence of record also makes it difficult to determine whether
petitioner's condition existed prior to service (EPTS), was incurred on
active duty,
The evidence implies that
petitioner's condition EPTS since the oldest health record entry available
(11 April 96) gives only a five-week history of symptoms
than the usual period of ACDUTRA.
or was service aggravated.
- which is longer
C .
In view of the above,
the tentative recommendation is to deny
petitioner's application.
contingent upon the following documentation being submitted for review:
Reconsideration, however, is recommended
1.
2.
3.
Fitness reports more contemporary with petitioner's date of
discharge;
Statement of service from Marine Headquarters which reflects
periods of active service;
Expert Otolaryngologic opinion regarding the onset, degree of
service aggravation, manifestations, and
restrictions/impairments consequent to petitioner's condition;
Subj
:
ASE OF FORMER
4.
Clarification of Marine Corps promotion policy; specifically
addressing petitioner's advancement
to E-7 despite
of not physically qualified.
BUMED
findIng
corr-ection
of the
In summary,
3.
petitioner's
Aczordinqly,
the record in this case does not support a
records to reflect entitlement to disability retirement pay.
tentatively recommend denial of the petitioner's request.
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