DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
JRE
Docket No. 07123-07
22 September 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.
A three-member panel of the Board for Correction of Naval
Records, sitting in executive session, considered your
application on 11 September 2008. Your 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 sustained an ankle injury during
January 2006 while playing basketball. The condition was
evaluated by a physician on 14 February 2006 and assessed as an
ankle sprain. It was subsequently diagnoses as a partial tear
of the deltoid ligament. You underwent a pre-retirement physical
assessment on 23 June 2006, and were considered physically
qualified for retirement, notwithstanding your ankle condition,
tinnitus, wrist pain and recurrent back pain. You were released
from active duty on 31 October 2006, and retired on 1 November
2006.
On 26 February 2007, the Commander, Naval Operational Medicine
Institute, advised the Commandant of the Marine Corps (CMC) that
based on “the flight physical examination of 23 June 2006”, you
were not physically qualified for all duty involving flying
because of a deltoid (ligament) ankle sprain, right ankle, with
failure to heal. The condition was considered permanent, and
based on the recommendation of a flight surgeon and review by
“NAMI-342”", a waiver was not recommended. On 28 February 2007,
CMC advised you that you were disqualified from all duties
involving flight, and that a waiver could not be granted by CMC.
The Board concluded that although you sustained an ankle injury
during your final year of active duty service which ultimately
resulted in your being disqualified from all duties involving
Elying, you have not demonstrated that you were unfit to
reasonably perform active military service when released from
active duty on 31 October 2006 or that your release was
erroneous or unjust. As indicated in enclosure (12) to your
application, the Disability Evaluation Manual provides that
physical disqualification from special duties such as flying
does not necessarily imply physical unfitness, and that referral
to the Physical Evaluation Board (PEB) is appropriate only in
cases where the member’s ability to reasonably perform active
military service is in doubt. The Board determined that you have
not established that you should have been retained on active
duty for further evaluation or treatment of your ankle
condition, or for consideration of your case by a medical board
or the PEB. The fact that you did not know you were being
considered for disqualification from flying duties at that time
does not warrant setting-aside your release from active duty or
granting any of your other requests.
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.
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,
LWSaud
W. DI
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