DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
JRE :
Docket No. 10007-09
28 September 2009
From: Chairman, Board for Correction of Naval Records
To: Secretary of the Navy
Sub): ‘Sa ES REVIEW
OF NAVAL RECORD
Ref: (a) 10 U.S.C. 1552
Encl: (1) DD — 149
(2) NPC memo 7220 PERS-82, 18 Sep 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 not released from active duty on
28 February 2009; that he has remained on active duty since that
date; that he be reimbursed for medical and related travel
expenses he has incurred since then because of his prostate
Cancer condition; and that he be granted a waiver of the
requirement that he repay the retired pay he has received since
1 March 2009.
oo ee and Messrs . aie:
and ie. reviewed Petitioner's allegations of error and
injustice on 24 September 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.
2. The Board, consisting of Ms. =i
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. In correspondence attached as enclosure (2), an official
of the Navy Personnel Command who has cognizance over the
subject-matter of the application advised the Board, in effect,
that Petitioner was released from active duty while suffering
from a condition ultimately diagnosed as prostate cancer. Had
his office been advised of Petitioner's condition prior to his
release, it would have authorized Petitioner’s retention on
active duty for treatment and possible referral to the
Disability Evaluation System. He recommended that Petitioner’s
request for restoration to active duty, reimbursement of
expenses, and waiver of retired pay already received be granted.
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 it would be in the interest of justice to correct
Petitioner’s record to show that he was not released from active
duty on 28 February 2009, and that he has remained on active
duty since that date in order to undergo evaluation and
treatment of prostate cancer. As Petitioner is entitled to
retired pay from 1 March 2009 through the date of the Board’s
action, he would be unjustly enriched if he were permitted to
retain that pay and receive full pay and allowances for the same
' period of time. Accordingly, the Board denied that portion of
his request. The Board did not have sufficient evidence before
it to make an informed decision on his request for reimbursement
of medical and travel expenses; consequently, it did not make a
determination on the merits of that portion of his request.
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 released from active duty on 28 February 2009, and
that he has been retained on active duty since that date to
undergo evaluation and treatment of prostate cancer.
b. That the portion of his request which pertains to waiver
of repayment of the retired pay he has received for the period
from 1 March 2009 to the date of the Board’s action be denied.
c. That a copy of this Report of Proceedings be filed in
Petitioner's naval record.
4. Pursuant to Section 6(¢) 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 MES CBee
Recorder Acting 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.
Looe
W. DEAN PFEIPERE
If it was known that he had prostate cancer but only later that it was determined to be in the LOD, they would conclude that he was retroactively entitled to the benefit of extension on AD. The Air Force also states that in their opinion, the applicant’s eligibility for benefits based on prostate cancer commenced only on 22 August 1994, when bony metastases and prostate cancer were diagnosed, and the benefit he would have been entitled to at that time was incapacitation pay. ...
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