DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
JRE
Docket No. 01971-07
22 April 2008
This is in reference to your application for correction of your
naval record pursuant to the provisions of title 10 of the
United States Code, section 1552, in which you requested, in
effect, that your record be corrected to show that you were
discharged by reason of physical disability, with entitlement to
disability severance pay.
A three-member panel of the Board for Correction of Naval
Records, sitting in executive session, considered your
application on 17 April 2008. yYour allegations of error and
injustice were reviewed in accordance with administrative
regulations and procedures applicable to the proceedings of this
Board. Documentary material considered by the Board consisted
of your application, together with all material submitted in
Support thereof, your naval record and applicable statutes,
regulations and policies.
After careful and conscientious consideration of the entire
record, the Board found that the evidence submitted was
insufficient to establish the existence of probable material
error or injustice.
The Board found that you were evaluated by a medical board on 17
April 2006 and give a diagnosis of chronic low back syndrome,
which had not resolved despite. multiple treatment modalities, to
include medication, physical therapy and chiropractic care. The
medical board report indicates that you were 5’8” tall, weighed
220 lbs and appeared to be obese. Examination of the lumbar
spine revealed essentially normal range of motion, without
palpable spasm, scoliosis or trigger points, and examination of
the lower extremities showed no motor or sensory deficit,
bilaterally depressed deep tendon reflexes at the ankles, anda
negative straight leg raising test. X-rays of your spine were
read as normal, and there was no indication for an MRI. The
medical board report suggests that there was little, if any,
objective evidence of impairment which substantiated your
subjective complaints. On 3 May 2006, the Physical Evaluation
Board (PEB) made the preliminary finding that you were fit for
duty. Prior to making that finding, the PEB considered the
medical board report, pertinent medical records, and a non-
medical assessment which indicates, in part, that your back pain
did not require you to work out of your specialty as a hospital
corpsman, and that you had good potential for continued service
despite the fact that you were not worldwide assignable and
could not complete the physical readiness test or physical
fitness assessment. You waived your right to a hearing and
accepted the findings of the PEB on 5 June. 2006, and your case
was finalized by the President, PEB, on 7 June 2006.
On 6 July 2006 your commanding officer advised the Commander,
Navy Personnel Command, in effect, that you had undergone.
reassignment screening and you were precluded from assignments
involving prolonged hiking, running, and lifting a heavy pack
due to your chronic back pain. In view of that determination
and Navy policy, you were then processed for separation by
reason of a condition, not amounting to a disability, which
interfered with your performance of duty, that condition being
your assignment~limiting back pain, rather than your obesity.
Although separation processing documents are not filed in your
Official Military Personnel File, the Board presumes regularity
in your case, i.e., that you were advised of your procedural
rights in connection with the proposed discharge, and that you
were accorded the rights you elected. An enlisted evaluation
report covering the period from 16 March to 4 November 2006
indicates that you were out of body fat standards during that
period, and had not participated in a physical fitness
assessment. You were discharged on 4 November 2006 for the
convenience of the government by reason of a condition, not a
disability, which interfered with your performance of duty. [It
appears that you were granted one-half rather than full
separation pay because Sailors who are separated for the
convenience of the government are not entitled to full
separation pay unless an exception to policy is granted by the
NR
Secretary of the Navy, as provided for in Navy Military
Personnel Manual article 1910-040.
The Board was not persuaded that you were unfit for duty by
reason of physical disability at the time of your discharge. As
noted above, you were found fit for duty by the PEB, you
accepted that finding and did not demand a formal hearing. The
fact that you were found unsuitable for worldwide assignment
because of your back pain, and separated for the convenience of
the government because of that limitation, does not equate to
unfitness for duty, as service member need. not be worldwide
assignable to be considered fit for duty. In your case, you
were physically able perform the vast Majority of the duties of
your rate both ashore and at sea.
In view of the foregoing, your application has been denied. The
names and votes of the members of the panel will be furnished
upon request.
If you want to apply for correction of your record to show that
you were authorized full separation pay, you should complete the
enclosed DD Form 149. In addition, it you want to apply for
correction of the basis for your separation to a reason other
than physical disability, you should complete the enclosed DD
Form 293.
It is regretted that the circumstances of your case are such
that favorable action cannot be taken. You are entitled to have
the Board reconsider its decision upon submission of new and
material evidence or other matter not previously considered by
the Board. In this regard, it is important to keep in mind that
a presumption of regularity attaches to all official records.
Consequently, when applying for a correction of an official
naval record, the burden is on the applicant to demonstrate the
existence of probable material error or injustice.
Sincerely,
Wheat
W. DEAN PFE
Executive D
Enclosure
WwW
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