DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
JRE
Docket No. 10333-05
23 March 2007
From: Chairman, Board for Correction of Naval Records
To: Secretary of the Navy
Subj: FORMER @j |. REVIEW OF NAVAL
RECORD
Ref: (a) 10 U.S.C. 1552
Encl: (1) DD 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
record be corrected to show that he was separated or retired by
reason of physical disability.
2. The Board, consisting of Messrs. W. . and @@@e and Ms.
iidiiiie_ xceviewed Petitioner's allegations of error and injustice
on 8 March 2007, 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 was referred to the Physical Evaluation Board
on 15 August 2005 with a diagnosis chronic non-radiating
discogenic pain, postoperative recovery. He had undergone lumbar
decompression surgery, with vertebral fusion at the L4-L5 and L5-
S1 levels. He limped and used a cane for ambulation, and was
unable to perform any exercise without significant back pain. He
had not performed his full duties as an aircraft rescue
firefighter since 15 December 2004 because of his spinal
condition. On 24 October 2005, the Physical Evaluation Board
determined that he was fit for duty, based on the findings that
he had full range of motion in his spine, bilateral negative
straight leg raise test, and normal strength and sensation in the
muscles of his lower extremities, with no objective evidence of
spinal disability. He was discharged from the Marine Corps on 28
January 2006, at age 36, by reason of completion of required
service, having completed 13 years and 23 days of active service.
He was assigned a reentry code of RE-3P, to indicate that he
failed to meet physical standards for enlistment.
CONCLUSION:
Upon review and consideration of all the evidence of record, the
Board concludes, after resolving doubt in his favor, that even
though Petitioner had full range of motion in his spine, and
there was no objective evidence of spinal disability, he was
unfit to reasonably perform the duties of his rank by reason of
physical disability because of his post-surgical back pain, which
precluded him from performing all but the administrative duties
of his specialty. Accordingly, the Board finds the existence of
an injustice warranting the following corrective action.
RECOMMENDATION:
a. That Petitioner's naval record be corrected to show, as an
exception to policy, that he was discharged by reason of physical
disability on 28 January 2006, with entitlement to disability
severance pay, in accordance with 10 USC 1203, with a 10% rating
under Department of Veterans Affairs code 5099-5003, for
status/post anterior and posterior lumbar decompression with
fusion at L4-L5 and L5-S1.
b. That so much of Petitioner’s request for corrective action
as exceeds the foregoing be denied.
c. That a copy of this Report of Proceedings be filed
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 AMES R. EXNICIOS
Recorder Acting 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
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.
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