DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
JRE

WASHINGTON DC 20370-5100
Docket No. 00506-08
16 December 2008

 

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

   

Subj: FORMER # Reet
REVIEW OF NAVAL RECORD

 

 

Ref: (a) 10 U.S.C. 1552

Encl: (1) DD Form 149 w/attachments
(2) Intl Med ltr of 20 Aug 08
(3) SECNAV CORB ltr 5220 CORB:02, 3 Nov 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 retired by reason of reason of
physical disability on 3 January 2006 due to systemic lupus
erythematosus (SLE). He contends, in effect, that he became ill
with SLE while serving in Iraq in July 2005 and has continued to
suffer from that condition until the present time.

2. The Board, consisting of Ms. (Mia, and Messrs. i cael
WE reviewed Petitioner's allegations of error an

injustice on 11 December 2008 and, pursuant to its regulations,
determined that the partial 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

vegulations within the Department of the Navy.

b. Enclosure (1) was filed in a timely manner.
c. Petitioner enlisted in the Marine Corps Reserve (USMCR)
on 7 August 2002, and served on initial active duty for training
from 7 August 2002 to 1 February 2003. His military occupational
specialty (MOS) was 0811, field artillery cannoneer. He was
activated on 4 January 2005 and sent to Irag with his unit,
where he served in a billet MOS of 0311, rifleman. During June
2005, he complained of headaches and muscle and joint pain. On
3 July 2005, he was seen by a medical corpsman for continued
joint pain and a sore throat, and stated that his symptoms had
been occurring two to three time per month for about six months.
He was released from active duty on 3 January 2006. On 24
January 2007 he was diagnosed with SLE and related cerebritis
with acute seizure activity, nephritis and hemolytic anemia. On
22 June 2007, the Department of Veterans Affairs (VA) granted
his request for service connection for a condition of his right
shoulder which it rated at 10% from 4 January 2006.

d. On 10 September 2007, the Chief, Bureau of Medicine and
Surgery (BUMED) advised the Commanding General, Marine Reserve
Forces, that Petitioner was not physically qualified for
retention in the USMCR due to lupus. Petitioner was honorably
discharged from the USMCR by reason of “involuntary discharge
(disability) not in line of duty no misconduct” on 5 October
2007. He was not accorded review of his case by the Physical
Evaluation Board (PEB) because of the determination that the SLE
was not “service incurred”.

e. In a rating decision dated 5 March 2008, VA rating
officials determined that “it was more likely than not” that the
initial manifestations of SLE occurred while Petitioner was on
active duty, and granted his request for service connection for
that condition and several related conditions. The SLE was
rated at 10% from 4 January 2006; the cerebritis with acute
seizure activity, associated with SLE,rated at 100% from 24
January 2007 to 28 February 2007, and thereafter at 10%; and
nephritis, anemia, scars on the chest and left heel, and deep
vein thrombosis, all associated with the SLE, rated at 0%.

f. In correspondence attached as enclosure (2), the
Specialty Leader for Rheumatology of the Bureau of Medicine and
Surgery (BUMED), advised the Board, in effect, that there is
documentation that Petitioner had unexplained symptoms and an
abnormal laboratory finding consistent with SLE while he was on
active duty in 2005. Although there is no additional laboratory
testing or sophisticated medical evaluation to establish with
absolute certainty that Petitioner had active SLE at that time,
there is a strong suggestion that he did. Petitioner should
have “had further evaluation for this possibility in 2005 with
any subsequent appropriate medical treatment and physical
evaluation board necessary prior to his discharge from the
service.”

g. In correspondence attached as enclosure (3), the
Director, Secretary of the Navy Council of Review Boards
(SECNAVCORB) advised the Board, in effect, that “awarding
benefit of the doubt” to Petitioner, it is likely that the first
manifestation of his subsequently diagnosed SLE occurred while
he was serving on active duty. While sufficient to establish
service connection for VA purposes, it is insufficient to
qualify for a disability rating by the Department of the Navy in
the absence of a determination of “consequent unfitness” for
continued naval service. In the Director’s opinion, the
available evidence is insufficient to warrant recommending a
retrospective finding of unfitness for continued naval service
at the time of Petitioner’s release from active duty in January
2006. He advised the Board further that he was unable to read
key performance evaluation data contained on the personnel disc
that was enclosed with the Board’s request for an advisory
opinion, and that resubmission of the request would be
appropriate if Petitioner’s performance evaluations became
available.

h. With regard to the issue of Petitioner’s performance
evaluations, the Board notes that Marines in the grade of
corporal and below receive proficiency and conduct (pro/con)
marks, rather than fitness reports or written performance
evaluations. Petitioner’s pro/con marks are not shown in the
available records; however, as he received an honorable
discharge, which requires satisfactory pro/con marks, it is
unlikely that his marks would be probative of his unfitness for
duty on 3 January 2006.

CONCLUSION:

Upon review and consideration of all the evidence of record, the
Board concludes that Petitioner suffered from the initial
manifestations of SLE during his period of active duty service
from 4 January 2005 to 3 January 2006. The Board accepts his
contention that he continued to suffer from symptoms of
undiagnosed or treated SLE after he was released from active
duty. Accordingly, it concludes that it would be in the
interest of justice to correct his record to show that he was
not discharged from the USMCR and that proper authority
determined that his SLE condition was incurred in the line of
duty.

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 discharged from the Marine Corps Reserve, and that
proper authority determined that his condition of systemic lupus
erythematosus was incurred in the line of duty.

b. That Petitioner be accorded a comprehensive medical
evaluation as soon as practicable and thereafter that his case
be forwarded to the Physical Evaluation Board for a ,
determination of his fitness for duty. Current address:

P.O. Box 368, PELAHATCHIE MS 39145

c. 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.

ROBERT D. ZSALMAN MES to / ICIOS
Recorder cting Recorder

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

review and action.
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W. DEAN P R

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Wer LA- Os

Robert T. Call
Assistant General Counsel
Manpower and Reserve Affairs)