DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
JRE
Docket No. 03574-08
11 May 2009
From: Chairman, Board for Correction of Naval Records
To: Secretary of the Navy
Subj: FORME} aasea eens
REVIEW OF NAVAL RECORD
Ref: {a) 10 U.S.C. 1552
Encl: (1) DD Form 149
(2) SECNAV CORB ltr 5220 CORB:002, 26 Feb 09
(3) 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 physical
disability due to a back condition and posttraumatic stress
disorder
2. The Board, consisting of Messrs. — . it = and
wineliioes. reviewed Petitioner's allegations of error and
injustice on 23 April 2009 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
regulations within the Department of the Navy.
b. Enclosure (1) was filed in a timely manner.
a. In correspondence attached as enclosure (2), the Director,
Secretary of the Navy Council of Review Boards (CORB) advised
the Board, in effect, that in his opinion Petitioner was unfit
for duty by reason of physical disability due to intervertebral
degenerative disc disease, L4-L5, that was ratable at 20%
disabling. In addition, he stated that there is insufficient
evidence that Petitioner’s psychiatric conditions resulted in
duty impairment sufficient to have rendered him unfit for
continued naval service. In that regard, he noted that
Petitioner’s fitness report for the 31 March through 6 November
2006 period extols his administrative and intellectual
accomplishments, and included his reporting senior’s highest
recommendation for promotion. The Director, CORB, recommended
that Petitioner’s record be corrected to show that he was
discharged by reason of physical disability with entitlement to
disability severance pay, vice by reason of a condition, not a
disability, which interfered with his performance of duty.
CONCLUSION:
Upon review and consideration of all the evidence of record, and
especially in light of the contents of enclosure (2), the Board
concludes that Petitioner was unfit for duty by reason of
physical disability due to intervertebral degenerative disc
disease, L4-L5. In addition, the Board concluded that
Petitioner failed to submit sufficient evidence to demonstrate
that he was unfit for duty because of the symptoms of his
posttraumatic stress and depressive disorders.
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
on 5 November 2006, the Secretary of the Navy found him unfit to
perform the duties of his rank by reason of physical disability
due to intervertebral degenerative disc disease, L4-L5, 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 20% 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
5243; and that as accepted medical principles indicate the
disability is of a permanent nature, the Secretary directed that
Petitioner be discharged with entitlement to disability
severance pay effective 6 November 2006 pursuant to 10 U.S. Code
1203.
b. That so much of Petitioner’s request for corrective action
as exceeds the foregoing be denied.
c. That a copy of this Report of Proceedings be filed in
Petitioner's naval record.
4. Pursuant to Section 6(c) of the revised Procedures of the
Board for Correction of Naval Records (32 Code of Federal
Regulations, Section 723.6(c)) 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 ff . ICIOS
et
Recorder ing Recorder
5. Pursuant to the delegation of authority set out in Section
6(e) of the revised Procedures of the Board for correction of
Naval Records (32 Code of Federal Regulations, Section 723.6(e))
and having assured compliance with its provisions, it is hereby
announced that the foregoing corrective action, taken under the
authority of reference (a), has been approved by the Board on
behalf of the Secretary of the Navy.
TSS. Fuel
Fo. W. DEAN PFEIFFER
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