DEPARTMENT OF THE  N 
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BOARD  F O R   C O R R E C T I O N   OF  NAVA 

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D

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2  N A V Y A N N E X  

W A S H I N G T O N   DC  2 0 3 7 0 - 5 1 0 0  

JRE 
Docket No.  10312-02 
17 July 2003 

From : 
To : 

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

Sub j : 

Ref: 

(a) 10 U.S.C.  1552 
(b) SECNAVINST 1850.4D 

Encl : 

(1) DD Form 149 w/attachments 
(2) Dir, NCPB ltr 5220, Ser: 03-09, 20 May 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 retained on active duty until 31 
May 2002, and transferred to the Temporary Disability Retired 
List the following day, with a combined rating of 40%; that he 
be reimbursed in the amount of $4401.00 for rent he paid for 
Navy housing; and that he reimburse by reason of physical 
disability. 

2.  The Board, consisting of Ms. Davies and Messrs. Kim and 
Novello reviewed Petitioner's allegations of error and injustice 
on 17 July 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 enlisted in the Navy on 7 August 1987, and 

served on active duty in an enlisted status until 7 July 1986, 
when he entered the U.S.  Naval Academy.  He was commissioned on 
30 May 1990.  He sustained a Lisfranc  (midfoot) fracture of the 
left foot on 8 June 1996, which required multiple surgical 
procedures between 20 June 1996 and 1 May 2001.  He was serving 
as an instructor at the Naval Academy Preparatory School on the 
latter date.  Shortly thereafter, he was notified of his second 
failure of selection for promotion to the grade of lieutenant 
commander, and that he had a statutorily mandated separation 
date of 1 March 2002.  As his foot condition remained 
symptomatic, and he suffered from several other medical 
conditions, he was evaluated by a medical evaluation board  (MEB) 
on 31 January 2002.  He was given diagnoses of Lisfranc joint 
fusion of metatarsal cuneiform joints 1,2,and 3; left hallux 
with decreased range of motion secondary to scar tissue 
entrapment; unspecified migraine; status/post dorsal exostosis 
of left foot, first and second metatarsal-cuneiform; status/post 
tenolysis, left extensor hallicus longus tendon, and eczematous 
dermatitis.  In the opinion of the MEB, Petitioner could not 
walk or stand for periods of time greater than one hour due to 
foot pain, and could not perform the duties of his rank; and 
that there was some impairment of his ability to carry out his 
duties because of intermittent migraine headaches. Accordingly, 
the MEB recommended that he be evaluated by the PEB.  Addenda to 
the MEB were prepared on 30 January and 8 February 2002, to 
document the migraine headaches and dermatitis, respectively. 
The addenda were attached to the basic MEB report without 
separate signature pages.  The convening authority approved the 
findings and recommendation of the MEB on 24 February 2002, and 
the report was forwarded to the PEB via FEDEX on 25 February 
2002.  On 27 February 2002, a PEB official rejected the MEB 
because of the absence of signature sheets for the addenda 
thereto. 

d.  Petitioner was released from active duty and discharged 

from the Navy on 28 February 2002, and he accepted a commission 
in the Naval Reserve.  He apparently continued as an instructor 
at NAPS in a civilian capacity for the remainder of the school 
year, and occupied government quarters until 31 May 2002.  On 17 
June 2003, Petitioner was notified by the Department of Veterans 
Affairs  (VA), that pending a final rating determination, he had 
been granted a 30% rating and entitlement to benefits under the 
Vocational Rehabilitation and Employment program, based on a 
review of his service medical records, and the results of VA 
~ ~ ~ r u ; n a t l i ; r r a  ~ u i 1 q l e i t . J  R e  t ~ v e c r ~  29  A u g c ! ~  

I_  &nd 11 Sep t e ! r t e ~ -  2001. 

e.  In correspondence attached as enclosure  (2), the Director, 

Naval Council of Personnel Boards  (NCPB), hereinafter "the 
Director", advised the Board, in effect, that the surgical 
procedures Petitioner underwent on 1 May 2 0 0 1   relieved some pain 
and released a tendon, but increased the limited range of motion 
of his big toe only 2  to 5 degrees.  Petitioner indicates in his 
petition that he continued to have left foot pain at the site of 
the joint fusion, as well as "giving out"  of his left foot.  As 
a result, if he were to stand or walk for 2  to 3 consecutive 
hours, he experienced metatarsal pain.  Moreover, if he 
continued to walk or stand, he would suffer "tremors in his 
foot", although he motor strength remained within normal limits. 
Petitioner states that this interferes with his ability to teach 
several classes a day or stand watch on the quarterdeck; 
however, the Director noted that Petitioner's  medical evaluation 
board states "if he walks or stands intermittently for 1 hour at 
a time with rest in between, he does not experience pain or 
weakness."  The Director noted that an addendum to the MEB report 
detailed a history of chronic intermittent migraine and tension 
headaches with only the latter having responded significantly to 
therapy.  The migraines were reported to occur at least twice 
monthly, with variable intensity.  The Director noted that 
despite the frustrations and limitations associated with his 
foot and headache conditions, Petitioner's  record of fitness 
reports continued through 3 1   January 2002.  He noted that 
available health records do not indicate "  that the need for 
medical attention, especially for ...  his migraine headaches, 
significantly interrupted his workday.  In addition, Petitioner 
indicates he was gainfully employed post-discharge in the 
educational field.  The Director opined that neither the left 
foot condition nor the migraine headaches appears to have 
rendered Petitioner unfit while he served on active duty. 
Hence, there is insufficient evidence to warrant a 
recommendation that Petitioner's  application be granted, "...even 
though Petitioner's  MEB had been rejected by the PEB on a 
technicality during preliminary screening." 

f.  Paragraph 3710  of reference (b), then in effect, provided 
that if a member is pending mandatory separation or retirement, 
such retirement or separation may only be deferred if the member 
is hospitalized or a medical board report has been accepted by 
the President, PEB for disability evaluation processing.  1 0  
U.S.C.  640. 

g.  Petitioner contends, in effect, that his MEB was unfairly 

rejected by the PEB based on a minor technicality that was not 

substantive in nature. He submits the statement of his 
disability counselor, which is to the effect that the MEB was 
rejected because of a mistake on her part.  She noted, however, 
that she subsequently learned from a PEB official that "medboard 
packages with addenda included within the package are accepted 
at the PEB."  Petitioner states that an MEB was going to be 
initiated in the Spring of 2001, but action was deferred pending 
surgery.  At the same time, he was sent to a neurologist, who 
did not complete his work-up until December 2001.  The MEB was 
not written until the end of January 2002, or signed until 25 
February 2002.  Given time constraints associated with his 
impending discharge, he did not submit a rebuttal to the MEB. 
Had he submitted a rebuttal he would have stated that although 
his pain was initially alleviated by the surgery on 1 May 2001, 
it recurred about 5 months later and continued to worsen since 
then.  If he stands without breaks for more than an hour, or with 
breaks for more than three, he gets tremors in the left foot. 
He explained that when teaching 50-minute periods with an hour 
off between periods, he usually did not have pain on those days. 
On days when he taught all day without any periods off, he would 
have to sit and teach from a chair by the last period of the 
day, and would occasionally ask leave work early so he could go 
home to rest.  He assigned himself duty on Mondays because he 
had no classes on Tuesdays, and could sit at his desk and stay 
off his feet.  During his last months of duty, he asked to be 
allowed to wear tennis shoes while standing watch, and be 
allowed to sit down from time to time rather than patrolling 
constantly. 

h. With regard to his migraine headaches, he contends that 

when he had migraines during a workday, he would either go home 
or rest at his desk.  As 90% of the headaches occurred in the 
afternoon, he could finish most of the day before leaving, and 
occasionally medication would help enough for him to stay until 
1515 hours, when the students went to sports.  He states that he 
had migraines on 17 December 2001 and 17 and 26 January 2002. 
He noted that his current teaching job pays only half as much as 
he made in the Navy, and that it was the only position he was 
offered during the five months he was looking of work.  He 
reports that he missed about 6 days of work during the previous 
school year because of migraines and foot pain. Both conditions 
have continued to worsen and affect his work.  The headaches 
occur at the same frequency, but their intensity and duration 
has increased.  His foot has gotten weaker and the time he can 
stand and walk without trouble and pain has decreased.  He 
believes that had he been given the opportunity to present his 
case he would have  been  able to preserit more information to show 

how his conditions affected his work and daily performance. 
Granting his request to be placed on the TDRL would give him the 
opportunity to be heard, but that action would not require the 
Navy to permanently retire him by reason of physical disability. 

CONCLUSION: 

Upon review and consideration of all the evidence of record, and 
notwithstanding the comments contained in enclosure  ( 2 ) ,   the 
Board concludes that relief is warranted in this case.  It notes 
that Petitioner's  MEB was rejected by the PEB on a mere 
technicality, rather than for substantive reasons.  The fact 
that the MEB was prepared indicates that the members of the MEB 
had concluded that his fitness for further service in the Navy 
was at least questionable.  While the Board is not convinced 
that he would have been found unfit for duty and assigned a 
disability rating of 30% or more had he been evaluated by the 
PEB  in 2002, it concludes that he should have been given the 
opportunity to present his case to the PEB. 

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

The Board notes that although a petitioner may be entitled to 
monetary compensation as a result of record correction, such as 
back pay and allowances, it has no authority to direct 
gratuitous payments, such as for the reimbursement of health 
insurance premiums. 

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 

he was not released from active duty on 28 February 2002 or 
discharged from the Navy. 

b.  That Petitioner's naval record be further corrected to 

show that on 30 May 2002, while he was entitled to receive basic 
pay, the Secretary of the Navy found him unfit to perform the 
duties of grade by reason of physical disability due to migraine 
headaches, and status/post Lisfranc fracture, left foot, which 
were incurred while Petitioner was entitled to receive basic 
pay; that the disabilities were not due to intentional 
misconduct or willful neglect, and not incurred during a period 

of unauthorized absence; that the disabilities are considered to 
be ratable at 40% 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 Numbers 
8100,(migraine headaches, 30%) and 5003,(status/post Lisfranc 
fracture, 10%); and that as accepted medical principles indicate 
the disabilities may be of a permanent nature, the Secretary 
directed that Petitioner be released from active duty on 31 May 
2002, and transferred to the Temporary Disability Retired List 
on 1 June 2002, pursuant to 10 U.S. Code 1202. 

c.  That Petitioner be afforded a periodic physical 
examination as soon as practicable.  Current address: 

d.  That so much of Petitioner's  request for correction of his 

naval record as exceeds the foregoing be denied. 

e.  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. 

Recorder 

- .-  - ---- 

w i t h g  Recorder 

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

Executive Di e tyi 

( M a n p o w e r   a n d - R e s e r v e  A f f a i r s )  

D E P A R T M E N T  O F  T H E  N A V Y  
O F F I C E  O F  T H E  A S S I S T A N T  S E C R E T A R Y  

( M A N P O W E R  A N D  R E S E R V E  A F F A I R S )  

1 0 0 0  N A V Y  P E N T A G O N  

W A S H I N G T O N .  D . C .  2 0 3 5 0 - 1 0 0 0  

July 24, 2003 

MEMORANDUM FOR EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF 

NAVAL RECORDS 

Subj:  REVIEW OF NAVAL RECORD; 

-, 

I have carefully reviewed the record of 

and concur with the findings and 

the Board.  However, because of the uncertainly surrounding the 
Petitioner's current physical condition, I believe it is 
appropriate to expeditiously secure a physical exam for 
L i e u t e n a n t  Accordingly, it is requested that the 
Board direct this exam to be scheduled within 60 days of 
Lieutenant -receiving 
for relief has been granted. 

notification that his petition 

Assistant General Counsel 
(Manpower and Reserve Affairs)