.

DEPARTMENTOFTHE NAV
BOARD FORCORRECTION OF NAVAL RECORD

Y

S

2 NAVY ANNE

X

WASHINGTON DC 20370-510

0

JRE
Docket No:  
9 August 2002

5732-01

From: Chairman, Board for Correction of Naval Records
To:

Secretary of the  

Na\,y

Subj:

FORME
REVIEW OF NAVAL RECORD

Ref:

(a) 10 U.S.C. 1552

Encl :

DD Form 149 w/attachments
 

(1)
(2) Dir, NCPB, ltr 5420, Ser:
(3) CMC ltr 1760  
(4) Subject ’s naval record

MMSR-6J,  26 Nov 01

01-15, 16 Apr 01

Pursuant to the provisions of reference (a), Subject, hereinafter referred to as Petitioner,

1.
filed enclosure (1) with this Board  
show that he was not discharged by reason of physical disability, and that he has remained on
active duty since that date.

req’ilesting, in effect, that his naval record be corrected   to

1 August 2002, and, pursuant to its regulations, determined that the corrective

2. The Board, consisting of Ms. Moidel and   Messrs. Bishop and Pfeiffer reviewed the
application on  
action indicated below should be taken on the available evidence of record. Documentary
material considered by the Board consisted of the enclosures, naval records, and applicable
statutes, regulations and policies.

3. The Board, having reviewed all the facts of record pertaining to Petitioner
of error and injustice finds as follows:

’s allegations

a. Before applying to this Board, Petitioner exhausted all administrative remedies

available under existing law and regulations within the Department of the Navy.

b. Enclosure (1) was filed in a timely manner.

6. On 7 December 1999, a medical board gave Petitioner diagnoses of unspecified

internal derangement of the knee, and chondromalacia
referred to the Physical Evaluation Board (PEB). At that time, he was serving on active duty
as a member of the Marine enlisted commissioning program at the University of Oklahoma.
On 12 April 2000, the PEB made preliminary findings that he was unfit for duty because of
chondromalacia 
findings on 21 April 2000, and apparently was advised that he would be discharged

patella, right knee, which it rated at 10% disabling. Petitioner accepted those

patella, and recommended that he be

 

 by reason

He apparently received authority from officials at an

of physical disability with thirty days.
Air Force hospital to be evaluated by a civilian orthopedic surgeon, and was seen by the
surgeon on 27 April 2000 with a complaint of bilateral knee pain, right greater than left. The
examination disclosed that he had full range of motion in each knee, from 0 to 135 degrees,
He indicated that both knees were painful,
and minimal objective signs of knee pathology.
but that he had obtained satisfactory rehabilitation of the right knee. The left knee symptoms
had gotten progressively worse, especially since he had started to favor the right leg. The
physician advised him that it he was unable to tolerate the condition of his right knee, he
might benefit from arthroscopic surgical procedure. While improvement in his condition was
not a certainty, the procedure should provide some relief in the short run. The physician
thought that the left knee might have some patellar tendinitis.
did not like to perform bilateral arthroscopy due to the difficult convalescence, but Petitioner
opted for the bilateral surgery because he was scheduled to be discharged in about four
weeks. He underwent elective bilateral knee arthroscopy with mediofemoral
procedure on 3 May 2000. It is unclear what military official authorized this surgery. When
examined on 18 May 2000, he had 0 to 60 degrees of
degrees in the left knee. He was to continue physical therapy and avoid high impact activities
for at least three months. He was confined to a wheelchair on that date, and was scheduled
recordes
to progress to weight bearing on the left knee in three weeks. There are no
available to the Board which describe the status of his knees following his convalescence from
the surgical procedures performed on 3   May 2000.

flexion in the right knee, and 0 to 100

He advised Petitioner that he

 

 

condyle OATS

 

d.

In correspondence attached as enclosure  

(2), the Director, Naval Council of

Personnel Boards (NCPB), advised the Board, in effect, that at the time of Petitioner
discharge, it appears that the conditions of each of his knees rendered him unfit for duty, and
that each was ratable at 10%. The Director recommended that Petitioner
corrected by adding a 10% rating for his left knee, for a combined rating of 20%. On 7 June
2001, the Board denied his request for correction of his record to show that he was retired by
reason of physical disability, because it was not persuaded that he was entitled to a combined
disability rating of 30% or higher at the time of his discharge.
action recommended by the Director, NCPB, because it would not have accorded Petitioner
any effective relief, because it would not have qualified his for disability retirement.

’s record be

’s

It did not effect the corrective

e. After being advised of the denial of his initial application, Petitioner submitted his
present application, in which he contended that his release from active duty was erroneous,
and that his record should be corrected to show that he has remained on active duty since 26
May 2000.
In his opinion, upon his return to active duty and receipt of appropriate medical
care and rehabilitative services, he will be fit for duty and for commissioning as a Marine
officer. He submitted several letters of character reference which attest to his excellent
abilities and qualification for commissioning.

f.

In correspondence attached as enclosure  

(3), the Board was advised by the Head,

Separation and Retirement Branch, Headquarters, U.S. Marine Corps, by direction of the
Commandant of the Marine corps, that Petitioner cannot be restored to active duty, as he
requests. He recommended that the case be referred to the PEB for review and further
opinion.

CONCLUSION:

 

, the Board was unable to
In this regard, it noted that he was

Upon review and consideration of all the evidence of record
conclude that Petitioner ’s discharge was erroneous.
discharged pursuant to the approved findings of the Physical Evaluation Board. The fact that
he underwent elective knee surgery while awaiting discharge, and that his condition
apparently worsened, at least in the short run, was insufficient to warrant the cancellation of
the final action of the PEB, and mandate the reopening of disability proceedings.
Notwithstanding the foregoing, the Board concludes that as the surgery was apparently
authorized by proper authority, and as Petitioner ’s condition may have been ratable at or
above 30% disabling at that time due to the effects of the surgery, it would be in the interest
of justice to correct his record, as an exception to policy, to show that he was transferred to
the Temporary Disability Retired List.
reevaluation and final assessment of his condition.

If such disposition is effected, it will permit the

In view of the foregoing, the Board finds the existence of an injustice warranting the
following corrective action.

RECOMMENDATION:

That Petitioner’s naval record be corrected to show that he was not discharged on 26

MayaiOOO.

b. That Petitioner’s naval record be further corrected to show that he was released from

active duty on 26 May 2000, and transferred to the Temporary Disability Retired List the
 
following day, pursuant to 10 U.S. Code 1202, with a combined disability rating of
follows: 5299-5003, 20% right knee, and 5299-5003,

lo%, left knee.

 

30%, as

C. That Petitioner be afforded a periodic physical examination as soon as practicable.

Current address: PO Box 18 183, Colorado Springs, CO 80935

d. That a copy of this Report of Proceedings be filed in Petitioner

’s naval record.

It is certified that a quorum was present at the Board

4.
the foregoing is a true and complete record of the Board ’s proceedings in the above entitled
matter.

’s review and deliberations, and that

ROBERT D. ZSALMAN
Recorder

V

/Acting Recorder

5. The foregoing report of the Board is

submitted for your review and action.

Reviewed and approved:

SEF 10

 

2002

Executive Director

Joseph G. Lynch
Assistant General Counsel
(Manpower and Reserve Affairs)