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NAVY | BCNR | CY2004 | 06398-04
Original file (06398-04.rtf) Auto-classification: Approved
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 2O37O-5100


 JRE
Docket No. 06938-04
22 August 2005
From:    Chairman, Board for Correction of Naval Records
To:      Secretary of the Navy
         
         Subj:     REVIEW O F NAVAL RECORD
         Ref:     (a) 10 U.S.C. 1552
En cl :    (1) DD Form 149
 (2)      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 the applicable naval records be corrected to show that he was retired by reason of physical disability, vice discharged for failing to reenlist.
2 The Board, consisting of Messrsl reviewed Petitioner’s allegations of error and injustice on 28 July 2005, 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.       Petitioner suffered a myocardial infarction (MI) during May 1996. He was released from active duty on 23 December 1996 and transferred to the Temporary Disability Retired List (TDRL) the following day, with a 30% rating for arteriosclerotic heart disease, having completed more than 16 years of active service. Although he had two additional documented MIs while on the TDRL, he was asymptomatic on 21 June 2001, when he underwent his final
 periodic examination, and engaged in heavy manual labor. The examining physician, however, recommended that he be permanently retired because of his inadequate control of cardiac risk factors. On 4 September 2001, the Physical Evaluation Board made preliminary findings that Petitioner was fit for duty and fit to return from temporary retirement. He accepted those findings on 10 September 2001. On 10 April 2003 the Medical Advisor, Navy Recruiting Command, determined that Petitioner did not meet established physical standards for enlistment due to “history of medical discharge for myocardial infarction”, and the Commander, Navy Recruiting Command disapproved a waiver of those standards. Petitioner’s name was removed from the TDRL on 22 June 2004 and he was discharged from the Navy because of his failure to reenlist.
d.       Petitioner contends, in effect, that as he was found unfit for reenlistment because of the same condition that resulted in his temporary retirement, he should have been permanently retired. In addition, he states that he had additional MIs during May 2001 and June 2004. His counsel contends, in effect, that based on Petitioner’s history of multiple heart attacks, and the denial of his application for reenlistment, it is clear that he was unfit for duty and entitled to disability retirement.
e.       DOD Directive 6130.4, Medical Standards for Appointment, Enlistment, or Induction in the Armed Forced, provided, in effect, that in those cases where a service member on the TDRL had been found fit for duty and applied for reenlistment, the formerly disabling condition which had resulted in his temporary retirement would not disqualify him from reenlisting.
CONCLUSION:
Upon review and consideration of all the evidence of record, the Board was not persuaded that Petitioner was unfit for duty on 22 December 2001, the fifth anniversary of his placement on the TDRL, when, by law, his entitlement to retired pay terminated. In this regard, it notes that his condition was asymptomatic at that time, and that he accepted the findings of the PEB. It is significant that he has failed to explain why he did not notify the PEB of the MI he states occurred during May 2001, or provide any substantiating evidence of either of the additional MIs he states he suffered.
The Board concludes that the determination that Petitioner was not
physically qualified (NPQ) for enlistment based on a “history of medical discharge for myocardial infarction”, was clearly erroneous. It is apparent that the physician who found Petitioner NPQ had little knowledge or understanding of the Navy Disability Evaluation System or the provisions of the DOD Directive 6130.4. For example, he stated that Petitioner had received a “medical discharge”, which is not an accurate description of Petitioner’s release from active duty and transfer to the TDRL, or the subsequent determination of the PEE that he was fit for duty. The Board concludes that some form of relief is warranted in this case; unfortunately, given the time which has elapsed since the PEB found him fit for duty, and the apparent deterioration of Petitioner’s health, it would not be in his best interest for the Board to correct his record in such a manner that he would be permitted to reenlist at this time.
In view of the foregoing, the Board recommends the following corrective action.
RECOMMENDATION:
a.       That Petitioner’s naval record be corrected to show that he was not discharged from the Navy on 22 June 2004.
b.       That Petitioner’s record be further corrected to show that he was transferred to the Fleet Reserve effective 23 December 2001 pursuant to the Temporary Early Retirement Authority then in effect
c.       That so much of Petitioner’s request for correction of his record as exceeds the foregoing be, and hereby is, 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         JAMES R. EXNICIOS
Recorder         Ac ting Recorder
5. Pursuant to the delegation of authority set out in Section
6(e) of the revised Procedures of the Board for Correction of
Naval Records (32 Code of Federal Regulations, Section 723.6(e))
and having assured compliance with its provisions, it is hereby
Pursuant to the delegation of authority set out in Section
6(e) of the revised Procedures of the Board for Correction of Naval Records (32 Code of Federal Regulations, Section 723.6(e)) and having assured compliance with its provisions, it is hereby announced that the foregoing corrective action, taken under the authority of reference (a), has been approved by the Board on behalf of the Secretary of the Navy.


                                                                        W. DEAN PFEIFFER
                                                                        Executive Director

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