DEPARTMENT OF THE NAVY
BOARD FORCORRECTION OF NAVAL RECORDS

2 NAVY ANNEX

WASHINGTON DC 20370-5100

JRE
Docket No. 06626-02
9 June 2003

From:
To:

Subj:

Ref:

Encl:

Chairman, Board for Correction of Naval Records
Secretary of the Navy

FORMER
OF NAVAL RECORD

(a) 10 U.S.C. 1552

‘REVIEW

(1) DD Form 149 w/attachments
(2) Dir, NCPB 
(3) Subject's naval record

ltr 5220, serial 03-08, 21 Apr 03

Pursuant to the provisions of reference (a), Subject,

1.
hereinafter referred to as Petitioner,
this Board requesting, in effect, that her naval record be
corrected to show that she was permanently retired by reason of
physical disability. She contends, in effect, the Physical
Evaluation Board (PEB) made its judgment in her case more than
one year after she underwent an examination while on the
Temporary Disability Retired List (TDRL), without considering
anything that occurred after the examination was conducted.

filed enclosure (1) with

2.

The Board, consisting of Ms.
reviewed Petitioner's a
on 5 June 2003 and, purs

determined that the corrective 
taken on the available evidence of
considered by the Board consisted of
records, and applicable statutes, re

actio
r

and

and Messrs.
ons of error
to its regul
indicated below should be
Documentary material

he enclosures, naval
lations and policies.

3.
The Board, having reviewed all t
pertaining to Petitioner's allegatio
finds as follows:

facts of record
of error and injustice

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.

Petitioner enlisted in the Marine Corps on 23 October
She appeared before a medical board on 20 December 1996,

C .
1995.
and was given a diagnosis of posttraumatic stress disorder,
manifested by recurrent and intrusive distressing recollections
of the event (allegedly being raped by another Marine),
recurrent distressing dreams of the event, intense psychological
distress at exposure to cues that symbolize or resemble aspects
of the event, efforts to avoid thoughts, feelings, and
conversations associated with the event, efforts to avoid
activities, places, or people that arose [sic] recollections of
the trauma, inability to recall an important aspect of the
trauma, diminished interest and participation in significant
activities, feelings of detachment and estrangement from others,
sense of foreshortened future, difficulty staying asleep,
irritability, difficulty concentrating, hypervigilance, and
exaggerated startle response.
her condition manifested itself by severe interference with
social adaptability, and moderate interference with civilian
industrial capacity.
findings that Petitioner was unfit for duty because of the
posttraumatic stress disorder, which it rated at 30% disabling.
Petitioner accepted those findings on 14 April 1997, and was
released from active duty and transferred to the TDRL on 30 June
1997.

On 28 March 1997, the PEB made preliminary

The medical board concluded that

d. Petitioner underwent an examination conducted by three Navy

She reported chronic

She received outpatient

It was noted that the

The examination

mental health professionals on 9 April 1999.
report indicates that Petitioner had lived with her boy friend
since her release from active duty,
and had attended college for
about three months.
She had not worked outside the home, and
enjoyed some social activities, such as going out for dinner,
going to the mall, and shopping.
depressive symptoms, and the posttraumatic stress disorder
symptoms paled in comparison.
psychiatric treatment about once per week beginning in July, but
not treatment since September 1997.
Department of Veterans Affairs (VA) had awarded her a 70% rating
for posttraumatic stress disorder with major depression and
bulimia nervosa, and 10% ratings for migraine headaches and a
hip condition.
trauma, she replied that she had not adequately dealt with it,
and that she was bothered when she thought about what had
occurred.
rapist found no fault by him.
She was given a diagnosis of
dysthymic disorder, and her global assessment of functioning
(GAF) was rated at 59,
moderate difficulty in social, occupational or school

She reported that the investigation of the alleged

When asked about how she had dealt with her

which reflects moderate symptoms or

The examiners recommended that she receive

functioning.
treatment at a VA facility, with a view toward removal from the
TDRL. On 5 January 2000,
the PEB made preliminary findings that
she remained unfit for duty because of posttraumatic stress
disorder, which it rated at 10%.
As two letters notifying
Petitioner of the foregoing were returned as undeliverable by
the postal service, he case was finalized on 5 April 2000, when
the President, PEB, published the Notification of Decision, and
requested that the Commandant of the Marine Corps discharge her
with entitlement to disability severance pay.
Although the date
of discharge is not shown in available records, Petitioner
indicates she was discharged on 30 April 2000.

e.

In correspondence attached as enclosure 

(2), the Director,

He pointed out that there is a VA

Naval Council of Personnel Boards (NCPB) advised the Board, in
effect, that the PEB made its findings on 5 January 2000, which
was approximately nine months after the 9 April 1999 TDRL
examination, rather than one year as claimed by Petitioner.
He stated that the PEB requires that medical records be as
current as possible, and that Petitioner's application
highlights an issue that likely challenges any entity devoted to
record review, i.e., the currency of the records being reviewed,
and that record review requires an informed judgment call on the
part of reviewers.
In his opinion, however, that issue has been
rendered moot in this case.
examination report dated 9 November 1999, which included the
opinion that Petitioner's clinical picture had remained
unchanged as compared to that noted one year earlier.
importantly, it suggested that despite the frustrating nature of
her symptoms, her function had not been so impaired "as to
prevent her from remaining without medication, hospitalization,
or/ for practical purposes, any psychiatric treatment." Although
that examination report was not available to the PEB when it met
on 5 January 2000, the report strongly suggests that her
clinical status had not changed appreciably in the interim. In
the Director's opinion, the degree of "contended industrially
relevant functional impairment attributable to Petitioner's
PTSD, is unexplained and inconsistent with a health behavior
stance, which has consistently, apparently, excluded availing
oneself of psychiatric treatment."
Accordingly, he concluded
that the evidence is insufficient to warrant recommending a
change in the PEB finding.

More

f. On 11 January 2000, the VA confirmed its previous combined

rating of 80% for Petitioner's psychiatric and physical
conditions. The rating was based on a review of medical records
and the aforementioned report of examination dated 9 November

That report indicates that she complained of nightmares,

1999.
flashbacks, intrusive thoughts, hypervigilence, and insomnia,
fear of Marines, decreased interest in sex, as well as anxiety,
depression and bulimia nervosa.
posttraumatic stress disorder,
bulimia nervosa and alcohol abuse, and a GAF score of 45, which
indicates she was experiencing serious symptoms or serious
impairment in functioning.

She was given diagnoses of

major depressive disorder,

g. The rating guidance for mental disorders contained in

1850.4D,then in effect, provided, in part, that the

SECNAVINST 
10% rating is appropriate in those cases where there is
occupational and social impairment due to mild or transient
symptoms that decrease work efficiency and ability to perform
occupational tasks only during periods of significant stress; or
where symptoms controlled by continuous medication.
The 30%
rating is appropriate when there is occasional decrease in work
efficiency and intermittent periods of inability to perform
occupational tasks, although generally functioning
satisfactorily, with routing behavior, self-care, and
conversation normal, due to such symptoms as depressed mood,
anxiety, suspiciousness, panic attacks, chronic sleep
impairment, and mild memory loss.

CONCLUSION:

Upon review and consideration of all the evidence of record and
notwithstanding the comments contained in enclosure  
after resolving reasonable doubt in Petitioner's favor, the
Board concludes that Petitioner should have been permanently
retired by reason of physical disability.
In this regard it
concludes that although the impairment caused by Petitioner
psychiatric condition is not so severe as to warrant a rating of
708, as assigned by the VA,
the 10% rating assigned by the PEB.
finds the existence 
corrective action.

Accordingly, the Board
of,an injustice warranting the following

it is more severe than indicated by

(2), and

RECOMMENDATION:

a.

That Petitioner's naval record be corrected to show that

she was not discharged from the Marine Corps by reason of
physical disability:

b.

That Petitioner's naval record be further corrected to

show that the Secretary of the Navy determined that Petitioner's

condition was permanent and ratable at 30% in accordance with
the Standard Schedule for Rating Disabilities in use by the
Department of Veterans Affairs at the time the Secretary found
Petitioner unfit, Code Number 9411;
accordingly, the Secretary directed that she be permanently
retired by reason of physical disability effective the date of
the removal of her name from the TDRL and discharge from the
Marine Corps, pursuant to 10 U.S. Code 1201.

and that accepted medical

C .

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's

4.
review and deliberations,
complete record of the Board's proceedings in the above entitled
matter.

and that the foregoing is a true and

ROBERT D. ZSALMAN
Recorder

The foregoing report of the Board is submitted for your

5.
review and action.

Executive D

Reviewed and approved:

JUN 

17 2003

Assistant General Counsel
(Mapower and Reserve  

Affacirrs)