DEPARTMENT OF THE NAVY

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

Docket No. 10443-07
19 December 2008

 

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

  

 

 

 

 

Subj: ™ in REVIEW
OF NAVAL RECORD
Ref: (a) 10 U.S.C. 1552
Encl: (1) DD Form 149
(2) SECNAV CORB ltr 5220 CORB:002, 30 Sep 08
(3) SECNAV CORB ltr 5220 CORB:002, 28 Oct 08
(4) 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 his naval record be
corrected to show that he was permanently retired by reason of
physical disability, vice transferred to the Fleet Reserve.

2. The Board, consisting of Ms. ie Messrs. QRM and
Citi reviewed Petitioner's allegations of error and
injustice on 4 September 2008 and, pursuant to its regulations,

determined that Petitioner’s record should be corrected to show
that he was unfit for duty by reason of physical disability on
31 May 2007. On 16 December 2008, after reviewing enclosures

(2) and (3), and Petitioner’s response thereto, the Board
recommended that the 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.

Q. Enclosure (1) was Filed in a timely manner.
c. Petitioner initially enlisted in the Navy on 12 December
1986. On 26 August 2006 he underwent surgery for evaluation and
treatment of metastatic squamous cell carcinoma. His tonsils,
some adenoid tissue, and several teeth were removed. On 16
February 2007, the Physical Evaluation Board (PEB) determined
that Petitioner was fit for duty in accordance with the
presumption of fitness (PFIT) standard, notwithstanding his
diagnoses of carcinoma of the tonsil and lymph nodes of the head
face and neck, without evidence of recurrence, status/post
surgical treatment, chemotherapy and radiotherapy; implantation
of a percutaneous endoscopic gastrostomy (PEG) feeding tube;
dysphagia; hearing loss; disturbance of skin sensation;
disturbance of salivary secretion; and nausea without vomiting.
He required the PEG tube because of his inability while
recovering from surgery, and difficulty swallowing that
continued after the completion of chemotherapy and radiation
treatments. He was released from active duty on 31 May 2007 upon
his completion of 20 years, 5 months and 19 days of active
service and attaining his high year tenure limitation. He was
transferred to the Fleet Reserve on 1 June 2007. On 2 August
2007, the Department of Veterans Affairs (VA) awarded hima
combined disability rating of 80% as follows: use of PEG device,
50%; dysphagia, 30%; degenerative disc disease, 20%; scar, 10%;
and four conditions at 0%. The final rating of 80% is based on
the combination of individual ratings, rather than the addition
of the simple addition of those ratings.

d. In correspondence attached as enclosure (2), the Director,
Secretary of the Navy Counsel of Review Boards (SECNAVCORB)
advised the Board, in effect, that Petitioner fell under the
PFIT provisions of DOD Instruction 1332.38, which are applicable
to service members who are referred to the PEB within 12 months
of their attaining retirement eligibility. He stated that PFIT
creates a “rebuttable presumption that a service member’s
medical condition has not caused career termination. This
presumption can only be overcome, basically, with the
development of acute, grave circumstances, sufficiently serious
deterioration that occurs as to preclude further duty if the
member were not retiring incident to the medical conditions
generating the referral to the PEB; or that the Service member
had, basically, been rendered Unfit prior to the PFIT
timeframe.” When Petitioner was referred to the PEB in January
2007, the adverse residual effects of treatment of his cancer
appeared to be improving, and were not of sufficient aggregate
severity to render him unfit for continued service. The
disability rating of 80% he received from the Department of
Veterans Affairs (VA) does not indicate unfitness, as VA ratings
are largely manifestation based, whereas military PEB ratings
are tied to actual functional occupational impairment, which
must be sufficient to render the service member unfit for
continued service in order to warrant disability separation or
retirement.

€. In correspondence attached as enclosure (3), the Director,
SECNAVCORB advised the Board further that although he believes
the PFIT finding is correct, a disability rating of 50% would
have been appropriate had he been found unfit for duty rather
than PFIT. Transfer to the Temporary Disability Retired List
(TDRL) would have been indicate given the likelihood that the
rating for his condition might change over the five-year maximum
period of eligibility for retention on the TDRL.

CONCLUSION :

Upon review and consideration of all the evidence of record and
notwithstanding the comments contained in enclosures (2) and
(3), the Board concludes that although Petitioner had
substantially recovered from a grave condition that was
identified while he was in a PFIT status, his continued need to
use a PEG feeding tube to ensure that he received adequate
nutrition following his extensive surgery, chemotherapy and
radiation treatment is sufficient to rebut the presumption of
fitness. The Board concludes that his use of the PEG tube
rendered him unfit to reasonably perform the duties of an
operational specialist.

The Board concurs with the rating guidance contained in
enclosure (3), as well as the recommendation that Petitioner be

transferred to the TDRL vice being permanently retired.

In view of the foregoing, 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

he was not released from active duty on 31 May 2007 or
transferred to the Fleet Reserve on 1 June 2007.

b. That Petitioner's naval record be further corrected to
show that on 30 May 2007, the Secretary of the Navy found him
unfit to perform the duties of his rate by reason of physical
disability by reason of category I, unfitting condition,
implantation of a percutaneous endoscopic gastrostomy feeding
tube due to Category II condition of malignant neoplasm of
tonsil (squamous cell carcinoma) and unspecified malignant
neoplasm of lymph nodes head, face, neck, without evidence of
recurrence, status post surgical treatment, chemotherapy and
radiotherapy, which was incurred while Petitioner was entitled
to receive basic pay; that the disability is not due to
intentional misconduct or willful neglect, and was not incurred
during a period of unauthorized absence; that the disability is
considered to be ratable at 50% in accordance with the Standard
Schedule for Rating Disabilities in use by the Department of
Veterans Affairs at the time the Secretary found Petitioner
unfit, Code Number 6819-7299-7203; and that accepted medical
principles indicate the disability may be of a permanent nature,
accordingly, the Secretary directed that Petitioner be released
from active duty on 31 May 2007, and transferred to the
Temporary Disability Retired List effective 1 June 2007 pursuant
to 10 U.S. Code 1202.

c. That Petitioner be afforded a periodic physical examination
as soon as practicable. Current address:
701 W. Spruce Street, Selinsgrove, PA 17870

d. 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. Za
ROBERT D. ZSALMAN ES R. XNICIOS

Recorder Acting Recorder

5. The foregoing report of the Board is submitted for your

review and action.
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W. DEAN PFEI

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Reviewed and aprveQ SQN COL

Vara 0&2

Reviewed and disapproved: