DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
701 S. COURTHOUSE ROAD, SUITE 1001
ARLINGTON, VA 22204-2490
JRE
Docket No. 388-12
19 October 2012
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 18 October 2012. Your allegations of error and
injustice were reviewed in accordance with administrative
regulations and procedures applicable to the proceedings of
this Board. Documentary material considered by the Board
consisted of your application, together with all material
submitted in support thereof, your naval record and applicable
statutes, regulations and policies.
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.
You served in the Navy from 9 July 1979 to 8 July 1983, when
you were released from active duty and transferred to the U.S.
Navy Reserve (USNR). You were discharged from the USNR on 7
August 1987 by reason of misconduct/drug abuse. You were
notified on that date in an Administrative Remarks service
record entry that you were not recommended for reenlistment.
You fraudulently enlisted in the Navy Reserve on 23 March 2001.
In this regard, the Board found that on 12 March 2001, you
certified that you had never used or possessed illegal drugs
or mind altering substances except as prescribed by a licensed
physician; you believed you had been recommended for
re-affiliation/reenlistment at the expiration of your last
period of service; and that you had prior service in the Navy
Reserve only from 8 July 1983 to 20 January 1985. In addition,
you apparently provided recruiting officials a document which
indicates that you had been recommended for reenlistment at the
conclusion of your prior service, and you certified in your
enlistment contract that you had completed only two years of
prior inactive service in the Navy Reserve.
You began an extended period of active duty service on 25 July
2008. You completed a Report of Medical Assessment on 8 August
2011 in which you stated that you did not have any conditions
which limited your ability to work in your primary military
specialty or required geographic or assignment limitations. You
began a period of terminal leave on 8 August 2011, and underwent
elective spinal fusion surgery at a Civilian facility on 5
October 2011. You were released from active duty on 24 December
2011 and assigned a reentry code of RE-1 to indicate that you
were qualified and recommended for reenlistment.
The Board was not persuaded that you were unfit for duty by
reason of physical disability on 24 December 2011. It noted that
cervical fusion is not unfitting per se, and that you have not
presented any evidence which suggests that the surgery you
underwent on 5 October 2011 rendered you unfit for duty. The
Board also noted that the instruction you cited in your
petition, which pertains to the application of the Department
of Veterans Affairs schedule for rating disabilities by the
military departments, was not in effect on the date of your
discharge. In addition, there it noted that there was nothing
in that instruction when it was in effect which required that
a medical evaluation board be convened in the case of each
service member who had undergone cervical fusion.
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. Inthis 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,
oe Fie -
ROBERT D. 4SALMAN
Acting Executive Director
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