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NAVY | BCNR | CY2006 | 04364-06
Original file (04364-06.rtf) Auto-classification: Approved
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
JRE
Docket No. 04364-06
11 July 2007

From:    Chairman, Board for Correction of Naval Records
To:      Secretary of the Navy

          Subj : REVIEW OF NAVAL RECORD

Ref:     (a) 10 U.S.C. 1552

End:     (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 record be corrected to show that she was retired by reason of physical disability, with ratings of 40% under Department of Veterans Affairs (VA) code 5241 for low back pain, 20% under VA code 5237 for cervical pain, and 10% under VA code 5312 for peroneus tendonitis.

2.       The Board, consisting of considered Petitioner’s allegations of error and injustice on 21 June 2007, and pursuant to its regulations, determined that the partial 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.       On 31 March 2005, the Physical Evaluation Board (PEB) made preliminary findings that Petitioner was unfit for duty because of a condition of the lumbar spine rated at 10% under VA code 5241, and major depression, rated at 10% under VA code 9434, and possible symptomatic accessory ossidle lateral to the right cuboid and related chronic peroneus tendinitis, rated at 0% under VA code 5279. The PEB affirmed those findings on 27 April 2005. A formal PEB that convened on 16 August 2005 determined that Petitioner was unfit for duty because of a condition of the cervical spine rated at 10% under VA code 5237, and major depression, rated at 0% under VA code 9434. The formal PEE also determined that the lumbar condition was not unfitting and therefore not ratable. On 3 October 2005, the Director, Secretary of the Navy Council of Review Boards (SECNAVCORB) determined that the condition of Petitioner’s cervical spine should have been rated at 20% under VA code 5237, based on the limitation of motion in that spinal segment, and that the mental disorder was not unfitting. The Director noted that the condition of Petitioner’s lumbar spine would have been ratable at 40% had it been unfitting. Petitioner was discharged by reason of physical disability on 16 December 2005, in accordance with the action of the Director, SECNAVCORB, of 3 October 2005.

 CONCLUSION:
Upon review and consideration of all the evidence of record, the Board concurs with the finding of the informal panel of the PEB that the condition of Petitioner’s lumbar spine rendered her unfit for duty by reason of physical disability. In addition, it concurs with the opinion of the Director, SECNAVCORB, that an unfitting condition of Petitioner’s lumbar spine would have warranted a rating of 40%. The Board concludes further that Petitioner has not demonstrated that she was unfit for duty because of peroneus tendonitis or a depressive disorder and entitled disability ratings for those conditions.
In view of the foregoing, the Board finds 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 she was not discharged on 16 December 2005.
b.       That Petitioner’s record be further corrected to show that on 16 December 2005, she was released from active duty and transferred to the Temporary Disability Retired List, pursuant to 10 U.S. Code 1202, due to cervical pain, rated at 20% under VA code 5237, and back pain, status/post L4-S1 fusion, rated at 40% under VA code 5241.

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c.       That Petitioner be accorded a periodic physical examination as soon as is practicable. Current address:
        
d.       That so much of Petitioner’s request for correction of her record as exceeds the foregoing be denied.
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. Z SALMAN                                                     ALAN E GOLDSMITH
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 72 3.6(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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