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

     
     
  
  
 
 
 
 
  
  
   
  
   
 
 
 
 
 
  
  
 
  
  
   

 
 

oes
JRE
Docket No. 07646-10

15 November 2010

 

 

This is in reference to your request for correction of your naval
record pursuant to the provisions of title 10 of the United States

Code, section 1552.

On 4 November 2010, a three-member panel of the Board for Correction
of Naval Records, sitting in executive session, conducted the review
directed by the United States Court of Federal Claims in an order
dated 16 July 2010. The Board considered the administrative record
(AR), less AR 1-117, which pertain to your request for further
consideration of the your initial application that was denied by the
Board on 3 August 2006. The Board also considered an advisory
opinion from the Director, Secretary of the Navy Council of Review
Boards (SECNAVCORB), dated 28 September 2010, and your response

thereto dated 27 October 2010.

The Director, SECNAVCORB, assigns, directs and supervises the
activities of the Physical Evaluation Board (PEB) and all other
elements of the Naval Disability Evaluation System, and takes final
action for the Secretary of the Navy in certain disability cases.
The SECNAVCORB advisory opinion was prepared with the advice and
assistance of the Director’s legal and medical advisors, and was

yD

rendered in accordance with the provisions of Secretary of the Navy
Instruction (SECNAVINST) 1850.4E.

 

The Board may deny an application in executive session if 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. Petitioners have the burden of overcoming this
presumption. See 10 USC 1552, 32 CFR 723.3e. It is not a duty or
function of the Board to demonstrate that a record is not erroneous
or unjust.

after careful and conscientious consideration of your request, the
Board found that you failed to submit sufficient evidence to overcome
shat presumption of ‘regularity, or to establish the existence of
probable material error or injustice in your naval record. In this
igonnegtion, the Board substantially concurred with the comments

yontained in the SECNAVCORB advisory opinion. The Board was not
persuaded that adjustment disorders were considered disabilities
under laws applicable to the military departments on 3 September
1993, or that you were unfit for further service by reason of physical

disability when you were voluntary discharged from the Navy in 1993.

fe also iA comand wil ap concurred with the advisory opinion
dated 13 April 2006 that was provided by physicians who were assigned
to the Behavioral Health Clinic, National Naval Medical Center
(NNMC). The Board specifically concurred with the findings listed
in AR 177, as well as the detailed and erudite explanation of the
bases of those findings. The Board disregarded the references to
SFCNAVINSTs 1850.4D and 1850.4E. The Board disagreed with the
Court’s determinations that the NNMC advisory opinion is “fatally
flawed” and that that you suffered froma “disability’ at the time
in question.

In cases where a petitioner has not been the subject of a medical
or physical evaluation board, the Board or a member of its staff will,
as a general rule, request 4 medical advisory opinion. The opinion
serves as a de facto medical board report, i.e., it reports on the
state of health of the petitioner and contains a finding that the
petitioner fitness for continued service was or was not questionable
at the time of his separation from the Navy or Marine Corps. If the
petitioner’s fitness is considered questionable by the Board or the
author(s) of the medical advisory opinion, the Board or its staff
will in most cases seek an advisory opinion from the Director,

SECNAVCORB, on the issue of the petitioner’s fitness for duty at the
time of his separation or release from active duty. The Board accepted
the determination of the authors of the NNMC opinion to the effect
that your fitness for duty was not questionable. The Board would
not have requested an advisory opinion from the Director, SECNAVCORB,
in your case, but for the fact that the Court determined that your

mental disorder qualified as a disability.
The title of SECNAVIST 1850.4C, Disability Evaluation Manual (DEM) ,
enclosure 3, is “MEDICAL CONDITIONS AND PHYSICAL DEFECTS WHICH
NORMALLY ARE CAUSE FOR REFERRAL TO THE PHYSICAL EVALUATION BOARD”.
The Board did not accept the Court’s finding to the effect that the
absence of the term “Adjustment Disorder” in enclosure 3 as a
condition normally cause for referral to the PEB, together with its
classification as a non-disabling condition in a later version of
the DEM, establishes that an adjustment disorder qualified as a
disability in 1993 . If correct, the Court’s reasoning would suggest
that numerous other mental disorders that were not considered
disabilities by the PEB at the time in question were in fact
disabilities, to include such conditions as paraphilias and other
sexual and gender related disorders, attention deficit disorder, and
perhaps substance abuse disorders, among others. In this regard,
the Board noted that the disorders listed in the preceding sentence
do not appear in SECNAVINST 1850.4C, enclosure (3), section O(3),
and that similar conditions and disorders are listed in SECNAVINST
1850.4D, section 8013(a) (4), as were adjustment disorders.

 

 

 

 

 

 

 

 

Although the Court’s decision was also based in part on the absence
of the term “adjustment disorders” in SECNAVINST 1850.4C, enclosure
3, section O(3) (a), Personality Disorders, the Court did not cite
the next subparagraph, 0(3) (b), Transient Personality Disruptions,
which states: “Transient personality disruptions of a nonpsychotic
nature or situational maladjustments due to acute or special stress
are generally self-limited conditions and do not render an individual
unfit because of physical disability” (emphasis added). The
emphasized words appear to include adjustment disorders, which, as
noted by the Court, were defined in DSM III-R as maladaptive reactions
to an identifiable psychosocial stressor or stressors, which, it was
assumed, would remit soon after the stressor ceased.

 

 

The Board concluded that you did not submit substantial or credible
evidence which is probative of your contentions that you were
mentally incompetent and unfit for duty by reason of physical
disability at the time of your separation from the Navy. The
opinions expressed by a psychiatrist in the report of the psychiatric
examination you underwent on 21 June and 28 July 2004, are speculative
in nature and of no probative value with regard to the issues of your
mental competence or alleged unfitness for military duty. The
record is replete with evidence that strongly suggests that you were
fit for duty. For example, the Court noted that you had declined
to undergo psychological counseling after April 1991; you elected
to be discharged in lieu of being transferred from your duty station;
your final performance evaluation was positive and contained
laudatory comments; and that during the course of your pre-separation
physical examination, you did not report the existence of any serious
defects or conditions that you believed had interfered with your
performance of military duties. On 6 July 1994, the Department of
Veterans Affairs (VA) granted you a 10% rating fora skin condition,
and 0% ratings for chronic prostatitis and a fractured right little
finger. The VA denied your request for service connection and
disability compensation for history of depression, diastasis rectus
abdominus, refractive error, residuals of exposure to asbestos, a
right elbow injury, and residuals of a chest injury. AR 340-41. The
denial of service connection for a history of depression was based
on the absence of a diagnosis of any type of mental disorder at the
time of your post-service VA mental disorder examination. AR 196.

Your statement of 27 October 2010 contains little substantive
information and does not successfully controvert the findings of the
Director, SECNAVCORB. You contend that the opinion contains
objectionable, misleading, vague, argumentative, and speculative
findings and conclusions, but do not Clearly articulate the basis
for these contentions. Although a mark of 3.8 in military bearing
and a lowered ranking among your peers might have been “career
buster[s]” had you decided to reenlist and been considered for
promotion selection, the evaluations are not adverse and do not
suggest that you were unfit for duty.

 

In view of the foregoing, 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.

Sincerely,

Lu Qhef

W. DEAN P F
Executive Biréctor