DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX

WASHINGTON DC 20370-5100

 

JRE
Docket No. 10687-06

4 February 2008

From: Chairman, Board for Correction of Naval Records

 

To: Secretary of the Navy
Subj: _
OF NAVAL RECORD
Ref: (a) 10 U.S.C. 1552
Encl: (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 he is entitled to separation
pay, was retired by reason of physical disability, and is not
required to repay the unearned portion of his selective
reenlistment bonus. Alternatively, he requests that he be
allowed to enlist in the Navy Reserve. He contends that he was
not properly advised of the consequences of accepting his
proposed discharge, and that he unsuccessfully attempted to

withdraw his waiver of rights.

2. The Board, consisting of Messrs. i,j pwe. ‘Sines 2

MM reviewed Petitioner's allegations of error and injustice
on 13 December 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. Petitioner enlisted in the Navy on 6 July 1998. On 22
November 2005 he underwent sea duty screening to determine his
Suitability for assignment to the USS Enterprise. He was noted
to be suffering from chronic plantar fasciitis, elevated
cholesterol, and high blood pressure, as well newly diagnosed
diabetes mellitus type II, which had not been treated as of that
date. He was considered unsuitable for operational assignment
until such time as the diabetes had been treated and was under
control. On 6 December 2005, the Commander, Navy Personnel
Command was notified of the foregoing. On 12 December 2005, the
Chief, Bureau of Naval Personnel (BUPERS) directed that
Petitioner be processed for administrative separation for the
convenience of the government within thirty days of that date.
On 21 December 2005, Petitioner was advised that he could be
subject to administrative separation action unless he became
suitable for operational duty no later than 30 December 2005.
Petitioner was reevaluated by a physician on 22 December 2005
and found unsuitable for world wide service.

c. On 29 December 2005, Petitioner was advised of his rights
in connection with his proposed separation for the convenience
of the government, and waived those rights, to include

representation by counsel and an appearance before an
administrative separation board to contest the proposed action.

On 5 January 2006, the discharge authority directed that
Petitioner be discharged for the convenience of the government
by reason of a condition, not a disability, which interfered
with his performance of duty, and that he be assigned a reentry
code of RE-3G. That code indicates that he requires a waiver in
order to be eligible for reenlistment. The discharge authority
also directed that unearned bonus payments, if any, be recouped.
Petitioner underwent a pre-separation physical examination on 12
January 2006 and was found physically qualified for separation
notwithstanding his high cholesterol, high blood pressure and
diabetes mellitus. He was 6'1” tall, and weighed approximately
240 lbs at that time. Petitioner was discharged on 13 January
2006, having completed 7 years, 6 months and 8 days of service.
He was entitled to one-half separation pay, in the amount of
$10,231.65. The unearned portion of a selective reenlistment
bonus (SRB) in the amount of $10,231.16 was recouped. On 28
October 2006, he was advised by the Defense Finance and
Accounting Center that he was indebted to the government in the

amount of $1,069.60.

dad. On 23 May 2006, the Department of Veterans Affairs (VA)
awarded Petitioner a combined disability rating of 40% for a
fungal infection, diabetes, hypertension, and conditions of both
of his feet and right knee.

CONCLUSION:

Upon review and consideration of all the evidence of record, the
Board concludes that Petitioner has failed to demonstrate that
he was unfit for duty by reason of physical disability at the
time of his discharge from the Navy. As noted above, he was
examined on 12 January 2006 and found physically qualified for
separation. The fact that he received disability ratings from
the VA is not probative of error in his Navy record, because the
VA assigns such ratings without regard to the issue of fitness
for military duty. The Board also concludes that Petitioner has
not established that it would be in the interest of justice to
forgive the recoupment of the unearned portion of his SRB.

The Board concludes further, however, that Petitioner’s
discharge for the convenience of the government by reason of a
condition not a disability which interfered with his performance
of duty was unfair. In this regard, it finds that Petitioner,
who performed his duties in an excellent manner for more than
seven years, was not given sufficient time to bring his blood
pressure, cholesterol and newly diagnosed type II diabetes under
control before being processed for separation. In addition, the
Board finds that Petitioner’s waiver of the right to appear
before an administrative separation board to contest his
discharge was ill-advised. Accordingly, it finds that it would
be in the interest of justice to change the basis for his
separation and authorize him full separation pay. The Board
does not believe it to be in the interest of justice to amend
his reentry code to one which would permit him to reenlist
without first obtaining a waiver, given his numerous,
potentially disqualifying medical conditions for which he is
receiving disability compensation from the Department of

Veterans Affairs

RECOMMENDATION :

a. That Petitioner's naval record be corrected to show that

he was honorably discharged on 13 January 2006 by reason of
Secretarial Plenary Authority, with entitlement to full

separation pay.
b. That so much of his request for separation action as
exceeds the foregoing be denied.

c. 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 A
Recorder Z 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.

Lo

W. DEAN P
Executive D