DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL RECORD

S

2 NAVY ANNE

X

WASHINGTON DC 20370-510

0

JRE
Docket No: 5542-00
2 April 2001

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 8 March 2001. 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 24 October 2000, a copy of which is attached, and the information you
submitted in 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
It noted that your separation was in accordance with the provisions
in the advisory opinion.
of 10 U.S. Code 631, based on your failure of selection for promotion. Although the
Secretary of the Navy could have deferred your separation under the terms of 10 U.S. Code
640, had he decided that additional time was needed for the evaluation of your physical
condition and determination of your entitlement to retirement or separation for physical
disability, you did not have the right to be retained on active duty. The Board was not
persuaded that there was inordinate delay in the processing of your case by naval medical
authorities, or that the failure of the Secretary to defer your mandatory separation was
erroneous or unjust. 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 
720 
KENNON STREET SE RM 309
WASHINGTON. DC 203746023

NAVY YARD

REPLY 

REFER 

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Ser:
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From:
To:

Subj:

Ref:

Director,
Executive Director,

Naval Council of Personnel Boards

Board for Correction of Naval Records

REQUEST

FOR COMMENTS AND RECOMMENDATION IN THE CASE OF

(a) Chairman, BCNR JRE DN:
(b)  SECNAVINST  

1850.4D

1531-99 

ltr  of 2 

Ott  00

This responds to reference (a) which requested comments and a

1.
recommendation regarding petitioner's request for correction of his records
to show that he was unfit for duty at the time of his discharge from the
naval service in March 1999.
We have determined that the evidence in this
case does not support a finding that petitioner was unfit for duty on 1 March
1999.

The petitioner's case history, contained in reference (a), was thoroughly

2 .
reviewed in accordance with reference (b) and is returned.
comments and recommendations are provided.

The following

a. It appears from the record that petitioner's decision to pursue a

surgical remedy in February 1999 was primarily due to a persistent history of
low back pain that remained refractory to non-surgical intervention during a
six-year period of relatively exemplary service as a Combat Systems/Training
Officer.
Because the record did not contain an Officer's Fitness Report for
petitioner's last eight to nine months on active duty, it can only be
presumed that he was able to perform duties appropriate to his rank and
designator during this time.

b. Despite the above,

on 1 March 1999 includes:

evidence that member was technically fit for duty

a reserve commission; a process (as we

1.

2.

3.

Petitioner's acceptance of 
are advised by NPC) that required him to attest to his fitness
and submit any evidence to the contrary to COMNAVRESFOR.
Petitioner's medical records at the time of his separation did
not convey any sense of clinical urgency,
corrective surgery had been recommended and was apparently
anticipated to occur within a six-month period.
Petitioner% own opinion of his fitness is demonstrated by his
--solicitation of civilian employment prior to his discharge (as
Petitioner

evidenced by his 28 Jul 2000 letter to BCNR).
apparently turned down offers of employment since he was told
that he would be held on active duty until "fixed".

though it is clear that

C .

Petitioner's major medical difficulties appear to have occurred in
the context of his prolonged convalescence from his one-month post discharge
(April 1999) posterior lumbar fusion. A second and more elaborate 
anterior/posterior fusion was apparently required in February 2000.

"360"

Subj:

CASE OF

d.

The evidence in this case leads to the conclusion (relative to

petitioner's spinal condition) that, for PEB purposes, he was technically Fit
(except for shipboard deployability),
in March 1999.
been placed in a Limited Duty status in conjunction with his 12 April 1999
surgery and likely not have been found Unfit by the PEB for his spinal
condition until the failure of said surgery had become apparent much later.

Had petitioner been retained on active duty, he would have

at the time of his mandatory separation

e.

If petitioner elects a PEB hearing on the issue of physical

¶graph  

eligibility for continued service in the Naval Reserves, the 
determination will be limited as to whether he is Physically Qualified (PQ)
or Not Physically Qualified 
1850.4D,  
extended active duty greater than 30 days who is released from active duty,
acquires an inactive duty drilling status,
for a condition incurred or aggravated while on active duty.
not a reservist on extended active duty for 30 days or more; accordingly,
only a PQ or NPQ determination would be made in his case.

Application of SECNAVINST
is limited to those cases involving a reservist on

and requests referral to the PEB

(NPQ)  for service.

1003d,

PEB's

Petitioner was

In summary,

the record in this case does not support a correction of the
3 .
petitioner's records to reflect that he was unfit for duty at the time of his
separation from naval service in 1999.
petitioner's request.

Accordingly,,

recommend denial of the