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NAVY | BCNR | CY2008 | 10300-08
Original file (10300-08.pdf) Auto-classification: Approved
DEPARTMENT OF THE NAVY

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

 

JRE
Docket No. 10300-08
12 December 2008

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

 

Subj: FORMER Sinisa
REVIEW OF NAVAL RECORD

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

Encl: (1) DD Form 149
(2) 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 her naval record be
corrected to show that she was honorably discharged by reason of

physical disability.

2. The Board, consisting of Messrs. i. ae 2
<<. reviewed Petitioner's allegations of error ana
injustice on 4 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
regulations within the Department of the Navy.

b. Petitioner underwent a pre-enlistment physical examination
on 30 May 2003, and completed a Report of Medical History in
which she concealed her history of knee right injuries,
reconstructive knee surgery, and pain. She enlisted in the Navy
Reserve on 30 May 2003. On 3 August 2003 she enlisted in the

Navy under the provisions of the Navy College Assistance Student
Head Start (NAVYCASH) program, which permitted her to attend
college in an active duty status for up to twelve months before
reporting for recruit training. She reported to the Recruit
Training Command, Great Lakes, Illinois, on 26 May 2004.

Shortly after reporting sought medical care for knee pain and
disclosed her pre-service history of knee injury and corrective
surgical procedures. She denied sustaining any significant
trauma to her knees while on active duty. On 29 June 2004, she
was discharged from the Navy by reason of erroneous entry/failed
to meet medical/physical procurement standards due to her pre-
existing right knee condition. AS a result of administrative
error, she received an uncharacterized entry level separation.
In a rating decision dated 24 February 2005, the Department of
Veterans Affairs (VA) granted Petitioner’s request for service
connection and disability compensation for osteoarthritis of the
right knee. The award was based on the unsubstantiated
conclusion of a VA physician that “while she had some degree of
osteoarthritis prior to entering into active duty [sic]
certainly worsened the arthritis”. The rating decision indicates
that there was evidence of early arthritis and subjective pain
in the knee, but minimal objective evidence of impairment.

CONCLUSION:

Upon review and consideration of all the evidence of record, the
Board concludes that Petitioner has failed to submit sufficient
relevant evidence to demonstrate that she was unfit for duty by
reason of physical disability that was incurred in or aggravated
by her active naval service. Her receipt of disability
compensation from the VA is not probative of the existence of
error or injustice in her naval record because VA rating
determinations are not binding on the Department of the Navy.
The Board also concludes that in view of the fraudulent nature
of Petitioner’s enlistment, it would not be in the interest of
justice to grant her military disability benefits under any
circumstances. Accordingly, the Board denied Petitioner’s
request for correction of her record to show that she was
separated from the Navy by reason of physical disability.

As Petitioner was no longer in an entry level status when
separation action was initiated in her case, her service should
have been characterized.

RECOMMENDATION:

a. That Petitioner's naval record be corrected to show that
on 29 June 2004, she was honorably discharged by reason of
erroneous entry,failed medical/physical procurement standards,
and assigned a reentry code of RE-4.

b. That so much of Petitioner's request for correction of her
naval record 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 if the above entitled matter.

AMES R. ICIOS
Acting Recorder

  

ROBERT D. ZSALMAN
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.

\ Dwain |

W. DEAN PFEINWF

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