DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON BDC 20370-5100
JRE
Docket No. 04464-09
16 August 2010
From: Chairman, Board for Correction of Naval Records
To: Secretary of the Navy
Subj: FORMER
REVIEW OF NAVAL RECORD
Ref : (a) 10 U.S.C. 1552
Enel: (1) DD Form 149
(2) Subject's naval record
1. Pursuant to the provisions of reference (a), Subject,
hereinafter referred to as Petitioner, faled 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. .
2. The Board, consisting of Messrs. aay and Sy
reviewed Petitioner's allegations of error and injustice on 5 August
2010 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. A medical evaluation board (MEBD) report dated 13 May 2008
indicates that Petitioner, a member of the Navy Reserve, was “clearly
unable” to perform his duties as a result of the effects of
posttraumatic stress disorder that was incurred while he was entitled
to basic pay. The MEBD recommended that his case be referred to the
Physical Evaluation Board (PEB) for determination of his fitness for
duty. On 19 June 2008 Petitioner signed a statement concerning the
findings of the MEBD in which he declined to submit a statement in
rebuttal, and stated that he was not “processing for
separation/retirement” at that time. He was discharged from the Navy
Reserve on 26 July 2008 at the expiration of his enlistment contract.
As he is no longer a member of the Naval Service, he is no longer
entitled to have the PEB consider his case.
CONCLUSION:
Upon review and consideration of all the evidence of record, the Board
concludes that had Petitioner been properly advised, and/or
administrative error not occurred, he would have extended his
enlistment so that he could be processed through the disability
evaluations system. Had that occurred, he would have been found
unfit for duty by reason of physical disability and transferred to
the Temporary Disability Retired List. Accordingly, 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 on 26 July 2008. ,
b. That Petitioner's naval record be further corrected to show
that on 27 July 2008, while he was entitled to receive basic pay,
the Secretary of the Navy found him unfit to perform the duties of
rate by reason of physical disability due to posttraumatic stress
disorder, 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 was the direct result of
a combat-related injury; that the disability is considered to he
ratable at 50% in accordance with 38 Code of Federal Regulations
section 4.129, under Department of Veterans Affairs code number 9411;
and that as accepted medical principles indicate the disability may
be of a permanent nature, the Secretary directed that Petitioner’s
name be placed on the Temporary Disability Retired List effective
26 July 2008 pursuant to 10 U.S. Code 1202.
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. 4SALMAN flee .
ct
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.
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