DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
JRE
Docket No. 10460-07
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 ‘nitially enlisted in the Navy on 20
December 1978, and served on active duty for four years. You
then served in the Navy Reserve until 14 September 1991, when
you were honorably discharged from the service and not
recommended for reenlistment pursuant to the approved findings
of an administrative discharge board (ADB). The report of the
ADB indicates that you committed a homosexual act on junior
Sailor without his consent. As of the date of your discharge,
you had completed 4 years of active service, and 8 years, 8
months and 25 days of inactive service.
You underwent Navy Reserve affiliation physical examinations on
6 September 1997 and 31 August 1998. You completed reports of
medical history on those dates in which you falsely denied that
you had ever been discharged from military service. You
reenlisted in the Navy Reserve on 12 December 1998. It is
unclear if you disclosed the circumstances of your discharge or
obtained a waiver of your disqualifications from enlistment;
however, your enlistment contract shows that you had 13 years, 8
months and 25 days of prior inactive service, which suggests
that you had continuous service from 20 December 1978 to 20
December 1998, whereas it appears that you had no service
between your discharge on 14 September 1991 and reenlistment of
20 December 1998. You apparently remained a member of the Navy
Reserve until 11 August 2003, when you enlisted in the Regular
Navy.
On 14 June 2006, a medical board gave you diagnoses of
mechanical low back pain and subjective memory complaints, and
recommended that you be referred to the Physical Evaluation
Board for a determination of your fitness for further service.
On 14 September 2006, the PEB made the preliminary finding that
you were fit for duty. You accepted that finding on 27
September 2006.
You underwent a medical assignment screening on 9 October 2006.
Although you were found fit for duty by the physician who
conducted the screening, you were not considered world-wide
assignable because you had recently been diagnosed with
depression, the caused the physician to recommend that you not
carry a weapon. On 16 February 2007, the Bureau of Naval
Personnel directed that you be processed for separation in
accordance with Military Personnel Manual article 1910-120, by
reason of a condition, not a disability, based on your having
March 2007, you waived your rights to consult with counsel,
submit a written statement for consideration by the separation
authority, request an administrative discharge board, and to be
represented at such a board by military counsel or civilian
counsel of your own choosing.
In a fitness report covering the period 16 November 2006-19
March 2007, your commander indicated that apart from your
medical condition, you lacked initiative, drive, and other
characteristics expected of an MA1. Your overall trait average
for that period was 1.29, and you were not recommended for
retention by your commander. You were honorably discharged from
the Navy on 23 March 2007, by reason of a condition, not a
disability, with entitlement to separation pay in the amount of
$19,306.35. You were assigned a reentry code of RE-4.
The Board carefully considered the physician’s statement and
other medical evidence you submitted in support of your
application. Although that evidence clarifies your diagnosis,
and identifies you as a surgical candidate, it does not
demonstrate that you were unfit for duty by reason of physical
disability at the time of your discharge. As you were not a
member of the Navy Reserve on the date of your discharge, there
is no basis for correcting your record to show that you
transferred to the Retired Reserve with entitlement to retired
pay at age 60, in lieu of being discharged. The Board concluded
that you were properly assigned a reentry code of RE-4 due to
the decline in your level of performance and your commander’s
determination that you should not be retained on active duty or
reenlisted.
The Board did not make a determination concerning the accuracy
of the entries in item 12, Record of Service, of your final DD
Form 214, because you did not specify the alleged errors in that
document, and you have not exhausted an available administrative
remedy by applying to the Commander, Navy Personnel Command, for
correction of that document.
In view of the foregoing, your application has been denied.
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,
\ D>, nasa Dpto
ROBERT ZSALMAN
Acting Executive Director
Director
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