DEPARTMENT OF THE NAVY

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

 

JRE
Docket No. 06907-08
18 May 2009

From: Chairman, Board for Correction of Naval Records

 

To: Secretary of the Navy
Subj: wi

REVIEW OF NAVAL RECORD
Ref: (a) 10 U.S.C. 1552

Enel: (1) DD Form 149
* (2) GECNAV CORB ltr 5220 CORB:02, 2 Oct O8
(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 separated or retired by reason of
physical disability “with a disability rating” for headaches,
vice discharged by reason of a “condition, not a disability” due
to headaches. ‘ .

 

2. The Board, consisting of Ms. AMS and siggy m and
ih, reviewed Petitioner's allegations of error and injustice on
14 “May 2009 and, pursuant to its regulations, determined 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.

b. Enclosure (1) was filed in a timely manner.

 

c. Petitioner enlisted in the Marine Corps on 7 June 2006.
He was evaluated by a medical board on 3 December 2007, and
given diagnoses of headaches with mixed features, including
migraine, tension and rebound; and possible occipital neuralgia.
The medical board report indicates that he experienced the
sudden onset of the headaches after feeling a “pop” in the back
of his head while doing calisthenics with his unit. On 14 March
2008, the Physical Evaluation Board (PEB) made the preliminary
finding that Petitioner was fit to continue on active duty. The
PEB noted that although Petitioner complained of constant
throbbing headaches with occasional photophobia, which precluded
him from standing watches and caused him to be away from work
for four to six hours per week, he was capable of performing his
duties as a unit diary clerk. Petitioner accepted the finding of
fitness on 8 April 2008, and his case was finalized by the
President, PEB on 15 April 2008. A medical record entry dated 9
June 2008 indicates that in the opinion of a neurologist, it was
unlikely that Petitioner’s headaches would improve to the point
of his “being able to carry out the demanding duties” required
of an active duty Marine, and that. he should receive a “MEDSEP”.
Petitioner was involuntarily discharged from the Marine Corps on

11 July 2008 for the convenience of the government due to a
condition, not a disability, namely, migraine headaches.

d. On 24 July 2008, the Department of Veterans Affairs (VA)
awarded Petitioner disability ratings of 50% for posttraumatic
headaches, 30% for an anxiety disorder, 20% for cervical spine
Strain, 10% for tinnitus, and 0% for allergic rhinitis and
alopecia areata (spotty hair loss), for a combined rating of
80%. The rating for headaches was based on Petitioner's report
that the headaches occurred four times per day and lasted four
to five hours at a time, which caused him to stay in bad and not
do anything “heavy”. ,

e. The VA schedule for rating disabilities lists the
following ratings criteria for headaches under code 8100:

With very frequent completely prostrating and prolonged
attacks productive of severe economic inadaptability......... 50

With characteristic prostrating attacks occurring on an
average once a month over last several months.......:s.ese.0- 30

With characteristic prostrating attacks averaging one in 2 - 10
months over last several months: -

f. In correspondence attached as enclosure (2), the Director,
Secretary of the Navy Council of Review Boards, advised the
Board, in effect, that the available evidence is inadequate to
warrant the requested corrective action. He stated that his
conclusion was based largely on the 11 December 2007 Non-medical
Assessment that was provided to the PEB by Petitioner’s
commander, which indicates that Petitioner’s condition had not
interfered significantly with his ability to perform his primary
duties as a unit diary clerk, and that he remained a “productive
member of the Marine Corps administrative structure”. Although
the commander emphasized Petitioner’s impairment with respect to
more physically demanding duties such as performing the physical
fitness test and deploying in certain settings, those aspects of
duty performance cannot form the sole basis for a finding of
unfitness for continued naval service. Petitioner's situation
highlights the difference between VA and military disability
determinations. VA determinations are manifestation/symptom
oriented, whereas military determinations are performance based,
In his opinion, it does not appear that Petitioner met the
threshold of unfitness for duty.

CONCLUSION:

Upon review and consideration of all the evidence of record,
notwithstanding the comments contained in enclosure (2), and
after resolving doubt in Petitioner’s favor, the Board concludes
that he was unfit for duty by reason of physical disability
because of his headache condition, and should have been
transferred to the Temporary Disability Retired List, rather
than discharged for the convenience of the government by reason
of a condition, not a disability. The Board was not persuaded,
however, that any of the other conditions rated by the VA
rendered him unfit for duty. As such, there is no basis for
assigning disability ratings to any of those additional
conditions.

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 for the convenience of the government on 11
July 2008.

b. That Petitioner's naval record be further corrected to show
that on 10 July 2008, while he was entitled to receive basic
pay, the Secretary of the Navy found him unfit to perform the
duties of his rank by reason of physical disability due to
headaches with mixed features, which were 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 30%
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 8100; that the
disability is not combat-related; and that as accepted medical
principles indicate the disability may be of a permanent nature,
the Secretary directed that Petitioner be released from active
duty on 11 July 2008, and transferred to the Temporary
Disability Retired List pursuant to 10 U.S. Code 1202.

c. That Petitioner be afforded a periodic physical examination
as soon as practicable. Current address:

 

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.
YALE

AMES R. EXNICIOS
Keting Recorder

   
 

ROBERT D. ZSALMAN
Recorder

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

review and action.

fn W. DEAN PFEIFFER

Rage aco ed,

Qa Sed KH. Cae,

SOF

RobertT.Cafi  ”

Assistant General Counsel
Manoower and Reserve Affairs)