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

 

 

This is in reference to your application for correction of your naval

record pursuant to the provisions of title 10 of the United States
Code, section 1552.

A three-member panel of the Board for Correction of Naval Records,
sitting in executive session, considered your application on 28 May
2010. The Board's inguiry was limited to determining whether the
failure of officials of the Department of the Navy to defer your
separation beyond 15 March 1999 shocked the sense of justice and was
therefore unjust. In addition to the information reviewed by the
Board when it considered your application on 8 March 2001 and 10
September 2009, the Board considered the petition for
reconsideration of post remand decision dated 18 November 2009 (PR1)

and the similar petition dated 2 February 2010 (PR2) .

After careful and conscientious consideration of the entire record,
the Board found that the evidence submitted was insufficient to
establish the existence of probable material error or injustice in

The Board noted that in its letter of 19 September 1999, the phrase
“you failed to submit sufficient evidence to demonstrate that” was
intended to apply to each of the succeeding clauses in the sentence
in which the quoted clause appears. Your counsel's contention that
the final three clauses of the sentence conflict with the Board's
decision to deny your request for correction of your record (PR2,
3,4) is incorrect.

Your counsel's contention to the effect that the surgical procedures
you underwent in March and April 1999 were not “elective” is
incorrect. Your counsel Failed to invite the Court's attention to
the attached “Convalescent Leave Request Form” (AR, 44), in which
your physician classified the spinal surgery you were scheduled to
undergo on 12 April 1999 as an elective procedure. It is clear that
the arthroscopic knee surgery you underwent on 11 March 1989 was also
elective in nature, as it was a minimally invasive diagnostic
procedure of the same type and purpose as a procedure you had been
advised to undergo approximately eight to ten years earlier ( ARI,

166, 174; PR2, a)

The Board did not accept your contention to the effect that your
assignment to sea duty for the majority of your career precluded you
from receiving necessary medical care (PR2, 15, 16). It appears that
you deferred undergoing definitive treatment of your knee and back
conditions because you felt that it would be in your best interest
and the best interest of the Navy to defer obtaining treatment that
might interfere with your performance of duty. In this regard, the
Board noted that in your rebuttal to the report of a medical
evaluation board (MEB) that was conducted on 10 February 1999 you
stated “I felt it my duty to not miss ship's movement as long as I
could, at least stand watch” and “as an ‘ex’ athlete on varsity teams,
I had learned to ‘play hurt’. In my opinion, wearing a khaki uniform
in the US Navy qualifies as being on the ‘varsity team’” (AR 247-250).
(“Khaki” refers to chief petty officers, warrant officers and

commissioned officers of the Navy) .

The Manual of the Medical Department, chapter 18, Medical Boards,
article 18-5(1) (b) (1996 reprint with changes up to and including
change 112, dated 21 February 1996) provided, in effect, that if a
member was temporarily unable to perform full duty, but return to
full duty was anticipated and it was necessary to follow the patient
for more than thirty days before final disposition was made,
convening of a temporary limited duty (TLD) board was indicated.
Article 18-29 provided, in effect, that TLD was a period of limited
duty not to exceed twenty-four months that was authorized in cases
where the prognosis was that the member could be restored to full
duty within the specified TLD period. Referral to a PEB was indicated
when there was a probability that the member would not be physically
qualified for full duty after twenty-four months of TLD. Article
18-34(1) provided, inpart, that any elective surgical procedure that
might affect a member's physical qualification for duty should be
completed before the initiation of a medical board.
cruction (SECNAVINST) 1850.4D, paragraph

that members should be placed on TLD when
er could be restored to full military

duty within a reasonable period of time, usually sixteen months or
less. Paragraph 3102a provided, in part, that a case entered the Navy
disability evaluation system when an MEB was dictated for the purpose
of evaluating the diagnosis and treatment of a member who was unable
to return to military duty because the member’s condition most Likely

was permanent, and/or any further period
the member to full duty. A condition was considered perman

the nature and degree of the condition rendered the member unable
to continue naval service within a reasonable period of time,

normally 12 months or less. Paragraph 3206a provided that elective

surgical procedures that might affect a member's physical
to be completed before the initiation

qualification for duty were

See wigs, Paragraph 10001 provided, in part, that if the MEB belaeves

that the member would be able to return to full military duties within

a reasonable period of time, a TLD board would be written. If the
to continue on active duty remained

member’s physical qualification
1 limitations precluded return to

in doubt or the member's physica
full duty after the prescribed TLD period, the MEB would refer the

case to the PEB.

Secretary of the Navy Ins
1008b, provided, in part,
the prognosis was that the memb

 

 

The MEB report dated 10 February 1999 indicates that the prognosis

in your case after operative stabilization and potential
decompression of your spine, as well as debridement of a suspected

lateral meniscus tear, was excellent, with a very high Likelihood
of full recovery and the ability to resume full active duty status
in the Navy (ARI, 125-127). The implementation of the MEB's

recommendation that you maintain yourself on active duty and undergo
right knee arthroscopy, followed by three months of stabilization
training of your lumbar spine, after which you would undergo spinal
surgery, would have required that you be retained on active duty Eor
approximately six months or longer. That recommendation could not
be implemented because of your impending mandatory separation, which
also precluded your being placed ina TLD status. The Board was not

persuaded that the referral of your MEB to the PEB was proper, or
that the MEB report as written would have been accepted by the PEB

under any circumstances.

e effect that the Board is required

to prove that the Navy’s failure to
wag not an injustice is

Your counsel’s contention to th

to provide substantial evidence

defer your separation beyond 15 March 1999
incorrect (PR2, 23). SECNAVINST 5420,.193, 19 November 1997,

enclosure 1 (codified as 32 CFR 723), section 3e(2), provides that
the Board may deny an application 4£ it determines that the evidence
of record fails to demonstrate the existence of probable material
error or injustice. The Board relies on a presumption of regularity
to support the official actions of public officers and, in the absence
of substantial evidence to the contrary, will presume that they have
properly discharged their official duties. Applicants have the
burden of overcoming this presumption.

The Board concluded that your separation was proper, and that you
have not demonstrated that the failure of Department of the Navy
officials to retain you on active duty shocked the sense of justice
or was otherwise unjust. Accordingly, your application has been
denied. The names and votes of the members of the panel will be
furnished upon request.

It is regretted that the circumstances of your case are such that
favorable action cannot be taken. You are entitled to have the Board
reconsider its decision upon submission of new and material evidence
or other matter not previously considered by the Board. In this
regard, it is important to keep in mind that a presumption of
regularity attaches to all official records. Consequently, when
applying for a correction of an official naval record, the burden
is on the applicant to demonstrate the existence of probable material
error or injustice.

Sincerely,

 

 

Enclosure