DEPARTMENT OF THE  NAVY 

BOARD  F O R C O R R E C T l O N O F N A V A L R E C O R D S  

2  NAVY  ANNEX 

WASHINGTON  D C   2 0 3 7 0 - 5 1 0 0   JRE 

Docket No.  10018-02 
3 October 2003 

From: 
To : 

Sub j : 

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

- 

FORMER ma-- 

315-02-0216; REVIEW OF NAVAL RECORD 

Ref: 

(a) 10 U.S.C.  1552 

Encl : 

(1) DD Form 149 w/attachments 
(2) Director, NCPB ltr 5220 Ser: 03-12, 22 Jul 03 
(3) Subject's naval record 

1.  Pursuant to the provisions of reference  (a), Subject, 
hereinafter referred to as Petitioner, filed enclosure  (1) with 
this Board requesting, in effect, that his naval record be 
corrected to show that he was restored to active duty to undergo 
surgical procedures on his spinal column, or, in the 
alternative, that his record be corrected to show that he was 
discharged by reason of physical disability rated at 10%. 

2.  The Board, consisting of Messrs. 

reviewed Petitioner's allegations of e- 

. and 

injustice on 25 September 2003 and, pursuant to its regulations, 
determined that the corrective 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's allegations of error and injustice 
finds as follows: 

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. 

c.  Petitioner initially enlisted in the Marine Corps on 26 

May 1992 for a period of four years.  He transferred to the 
Individual Ready Reserve on 25 May 1996.  He accepted career 
designation in the Active Reserve Program on 24 February 1998, 
which entailed extended service on active duty as a member of 
the Marine Corps Reserve.  He was evaluated by a medical board 
on 22 January 2002, and given diagnoses of chronic mechanical 
low back pain; patellofemoral pain syndrome; nephrolithiasis 
(kidney stones); and left shoulder impingement. The body of the 
medical board report indicates that Petitioner had been 
evaluated by several different practitioners who had diagnosed 
his back condition as lower back pain with questionable 
radiculopathy (a pathological condition of the vertebral nerve 
roots). As he had not benefited from conservative treatment with 
different medications and exercises, he was referred for 
neurosurgical evaluation.  The results of an MRI evaluation 
indicate that he had degenerative disc disease  (DDD) at the L5- 
S 1   vertebral level, as well as in the lumbar spine.  The 
condition was treated with back bracing and three epidural 
steroid injections, which did not result in significant relief 
of symptoms. An Army neurosurgeon concluded that as Petitioner 
had failed the aforementioned treatment regimen, it was probable 
that an internal fixation of the spine would also fail, and that 
he was therefore not a candidate for surgery. The medical board 
concluded that Petitioner was unfit for duty because of his 
"chronic musculoskeletal issues", and recommended that he be 
referred to the Physical Evaluation Board  (PEB). 

d.  On 13 May 2002, the Record Review Panel of the PEB made 

preliminary findings that Petitioner was fit for duty, 
notwithstanding his orthopedic conditions.  He rejected those 
findings and demanded a formal hearing.  He appeared before a 
formal PEB on 18 July 2002, and requested that he be found unfit 
for duty because of low back pain, and that he be assigned a 
disability rating of 10% under VA code 5295.  The formal PEB 
noted that although an MRI showed some L5-S1  disc degenerative 
changes, with a disc protrusion and mild neural foramina1 
encroachment, the protrusion did not produce significant spinal 
stenosis, and neurosurgery had reported a normal physical 
examination, with full motor strength and negative straight leg 
raise testing bilaterally.  Thus, the formal PEB felt there was 
no physiological explanation for Petitioner's  complaints of 
pain.  It noted that he had derived no benefit from epidural 
injections or a back brace, and that "the member simply 
continued to assert that he had serious back pain."  The formal 
panel was perplexed by the fact that despite the absence of 
significant objective findings, Petitioner testified to dramatic 

pain that was so bad he could not wear a uniform, because 
wearing a belt exacerbated his back pain.  The formal PEB 
discounted a number of letters from Petitioner's  superiors, 
peers, and wife, which indicate that he had displayed symptoms 
of back pain severe enough to affect his posture and gait, 
caused him to miss time from duty, and interfered with his 
performance of duty and ability to engage in various personal 
activities.  The formal PEB confirmed the finding of fitness, 
and the case was finalized on 24 September 2002.  Petitioner was 
released from active duty on 23 November 2002 and involuntarily 
discharged, by reason of "NON-RETENTION ON ACTIVE DUTY", because 
he had twice failed of selection for promotion to staff 
sergeant.  He was assigned a reentry code of RE-lB, to indicate 
he was eligible and recommended for reenlistment by his 
commanding offocer, but that he had been denied retention by the 
Commandant of the Marine Corps. 

e.  Petitioner contends that he has been unable to find 

employment since his discharge, which he attributes to the 
effects of his back condition.  He submits the results of 
testing and examinations he underwent during March 2003, which 
demonstrate that his back pain is discogenic in nature, and 
that, in the opinion of a civilian physician, he would benefit 
from staged surgical procedures at the L4-L5  and L5-S1, 
consisting of a hemi-laminectomy, discectomy, postereolateral 
and interbody fusions, and bone grafting.  Petitioner contends 
that he should be restored to active duty to undergo the 
recommended procedures, which he believes may result in his full 
recovery, and that he should be retained on active duty for the 
period of his convalescence from the surgical procedures. 

f.  In correspondence attached as enclosure  (2), the Board was 

advised by the Director, Naval Council of Personnel Boards, in 
effect, t h d ~  Petitioner's  discharge documents suggest that he 
had the option to remain on active duty, where continued medical 
and surgical evaluation, monitoring and treatment would have 
been available.  The Director noted that despite obvious 
frustrating aspects, Petitioner's  back condition did not render 
him unfit for duty, as evidenced by the "adequate, even somewhat 
complimentary FITREP covering the year ending 5 months after the 
Petitioner's  MEB which referred Petitioner to the PEB", as well 
as the relative absence of neurologic, physical or radiographic 
findings that led to a recommendation against surgery, as noted 
in a 1 August 2000 neurosurgery consultation report. The 
Director advised the Board that post-discharge evaluations 
suggest that Petitioner's  condition may have progressed to the 
point that at least one civilian evaluator felt that a 

rec~mwndation for surgical intervention was warranted.  In the 
Director's opinion, the evidence of record "appears insufficient 
to warrant a retrospective change" in the findings of the PEB. 

CONCLUSION: 

Upon review and consideration of all the evidence of record, and 
notwithstanding the comments contained in enclosure  (2), the 
Board concludes that Petitioner's  discharge without entitlement 
to disability benefits administered by the Department of the 
Navy was unjust . 

The Board notes that although Petitioner was recommended for 
reenlistment by his commanding officer, his discharge was 
involuntary because the Commandant of the Marine Corps denied 
his request for reenlistment.  It does not appear that 
Petitioner could have remained on active duty and availed 
himself of further medical care, as the Director, Naval Council 
of Personnel Boards, suggests he could have done.  The Board 
also notes that the specific testing that established that 
Petitioner's  symptoms were discogenic in nature was not 
performed prior to his release from active duty.  Although the 
findings made several months after he was discharged may 
indicate that his condition had worsened in the interim, it is 
also possible that the true cause of his back pain was not 
recognized as such prior to his release from active duty. In 
addition, it believes that irrespective of the cause of his back 
pain, the pain was real, and had an adverse effect on 
Petitioner's  performance of duty;  The Board concludes, after 
resolving reasonable doubt in his favor, that Petitioner was 
unfit for duty at the time of his discharge, and that he should 
have been separated from the Marine Corps by reason of physical 
disability.  The Board was not persuaded, however, that he was a 
surgical iarldidate at that time, or that he was prematurely 
released from active duty while in need of emergent medical care 
that would have mandated his retention on active duty. 

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

RECOMMENDATION: 

a.  That Petitioner's naval record be corrected to show that 
on 22 November 2002, while Petitioner was entitled to receive 
basic pay, the Secretary of the Navy found him unfit to perform 
the duties of his rank by reason of physical disability due to 
low back pain, which was incurred while Petitioner was entitled 

to receive basic pay; that the disability is not due to 
intentional misconduct or willful neglect, and was not incurred 
during a period of unauthorized absence; that the disability is 
considered to be ratable at 10% 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 5295; that the condition is not combat 
related; and that accepted medical principles indicate the 
disability may be of a permanent nature, accordingly, the 
Secretary directed that Petitioner be discharged by reason of 
physical disability effective 23 November 2002, with entitlement 
to disability severance pay, pursuant to 10 U.S. Code 1203. 

c. That so much of PetitionerVs.request for correction of his 

naval record as exceeds the foregoing be denied. 

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

Petitioner's naval record. 

4.  It is certified that a quorum was present at the Board's 
review and deliberations, and that the foregoing is a true and 
complete record of the Board's proceedings in the above entitled 
matter. 

ROBERT D. ZSALMAN 
Recorder 

cting Recorder 

5.  The foregoing report of the Board is submitted for your 
review and action. 

L 

W. DEAN P  E l " t  &&! 

A s s i s t a n t   G e n e r a l   Counsel 
(Manpower  &  R e s e r v e   A f f a i r s )