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NAVY | BCNR | CY2007 | 08398-07
Original file (08398-07.pdf) Auto-classification: Denied
DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100

 

JRE
Docket No. 08398-07
19 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 entered on initial active duty for
training in the Marine Corps Reserve (USMCR) on 27 May 2003, at
27 years of age. On 13 August 2003, you sought medical care for
knee pain of about six weeks duration. You were released from
active duty on 23 August 2003. On 13 July 2004, you reported
for a second period of active duty for training. As your knee
became painful shortly thereafter, a magnetic resonance imaging
(MRI) study of your knee was ordered. The MRI which was
conducted on 24 September 2004 showed mild diffuse thinning of
the articular cartilages of the knee, with very minimal
osteopytosis, and a small amount of joint fluid. The results
were otherwise within normal limits. On 10 November 2004, you
Signed a medical record entry in which you were advised that you
were considered physically qualified for release from active
duty; that to receive disability benefits from the Department of
the Navy you must be unfit to perform the duties of your office,
grade, or rating because of disease or injury incurred while
entitled to basic pay; and that after separation, claims for
disability benefits must be submitted to the Department of
Veterans Affairs. A certified physician’s assistant reviewed
your record at that time. He determined that a focused physical
examination was not indicated, and that you were physically

qualified for separation. You were released from active duty on
16 November 2004.

Due to your continued complaints of knee pain, your commanding
officer requested that your case be referred to the Chief,
Bureau of Medicine and Surgery (BUMED), for a determination of
your qualification for continued affiliation with the USMCR. On
28 February 2005, the Chief, BUMED, advised the Commanding
General, Marine Force Reserve, that you were not physically
qualified for retention in the USMCR due to patellofemoral
syndrome and patellar tendonitis. You were discharged from the
USMCR on 8 April 2005.

 

The Board was not persuaded that you were unfit for duty by
reason of physical disability that was incurred in or aggravated
by your service in the USMCR. The Board concluded that given
the minimal degenerative changes in your knee, it is likely that
you would have been processed for administrative separation by
reason of a condition, not a disability, which interfered with
your performance of duty, had you been on extended active duty
in the USMC, rather than by reason of physical disability. In
addition, the Board concluded that the determination of the
Chief, Bureau of Medicine and Surgery, that you were not
physically qualified for retention in the USMCR is not
tantamount to a finding that you were unfit for duty by reason
of physical disability, and it is not probative of the existence
of material error or injustice in your case. Accordingly, 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,

ROBERT D. SALMAN
Acting Executive Director

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