DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL RECORDS
701 S. COURTHOUSE ROAD, SUITE 1001
ARLINGTON, VA 22204-2490

JRE
Docket No. 8367-13
28 January 2015

From: Chairman, Board for Correction of Naval Records
To: Secretary of the Navy

REVIEW OF NAVAL RECORD

  
     

Ref: (a) 10 U.S.C. 1552

Encl: (1) DD Form 149
(2) Subject's naval record
(3) Director, CORB ltr 5220 CORB:002, 1 Dec 14

1. Pursuant to the provisions of reference {a), Subject
hereinafter referred to as Petitioner, filed enclosure (1) with
this Board requesting, in effect, that the applicable naval
record be corrected to show that he was retired by reason of
physical disability, vice released from active duty at the
expiration of his active duty service commitment.

>. The Board, consisting of Messrs. Hicks, Spooner and Swarens
reviewed Petitioner's allegations of error and injustice on 15
January 2015 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. Although the
application was not filed in a timely manner the Board finds it
in the interest of justice to consider the application on the
- merits.

b. Petitioner enlisted in the Marine Corps on 10 December
2001. On 4 April 2004, while serving as an infantryman in
Operation Iraqi Freedom, he sustained multiple shrapnel wounds
and other injuries from the explosion of an improvised explosive
device. In a letter dated 3 February 2005, the Commandant of the
Marine Corps approved the recommendation of a limited duty
medical board that Petitioner be retained in a limited duty
status for a period not to exceed 8 months, and that if found
fit for full duty as a result of reevaluation, that a copy of
the medical board cover sheet be submitted to him. Petitioner
completed a Report of Medical Assessment (DD Form 2697) on 12
September 2005 in which he listed nerve damage, hip pain,
circulation problems from shrapnel, and memory loss as
conditions which limited his ability to work in his primary
military specialty and/or required geographic or assignment
limitations at that time. The assistant regimental surgeon who
reviewed that form made entries therein which suggest that
although Petitioner was clinically stable, referral to “VA/DOD
TBI, Texas VA (already scheduled) Also neuropsych testing &
neurologist” was recommended. Petitioner was released from
active duty on 9 December 2005 by reason of completion of
required active service, and assigned a reentry code of RE-1A,
which indicates he was recommended and considered eligible for
reenlistment at that time. .

c. The Department of Veterans Affairs (VA) awarded Petitioner
the following disability ratings effective 10 December 2005: 30%
for laceration of the liver with dumping syndrome and history of
irritable bowel syndrome; 30% for ulnar nerve laceration and
residuals of right (dominant) thumb fracture; 20% for peripheral
neuropathy of the left upper extremity; 20% for peripheral
neuropathy of the left upper extremity; 20% for reflex
sympathetic dystrophy of the left leg; 10% for shrapnel wounds
of right hip; 10% for tinnitus; 10% for post-concussive
headaches; and 10% for cognitive disorder. In addition, he was
granted basic eligibility for Dependents’ Educational Assistance
from 23 October 2008, based on the determination that he was
permanently and totally disabled.

d. In correspondence attached as enclosure (3), the Director,
Secretary of the Navy Council of Review Boards opined that the
available evidence does not support the granting of Petitioner’s
request. The Director noted that a normal physical examination
was recorded on 3 March 2006, to include muscle strength and
neurologic coordination; that Petitioner worked as a foreman for

ee ee
a roofing company and was a volunteer fire fighter; and that as
to his cognitive disorder, he was functioning in the average
range of intelligence but likely had mild losses from a
previously higher level of functioning. He denied having
symptoms of anxiety or depression, and his Global Assessment of
Functioning was 70. Other notes reported lifelong difficulty
with reading and spelling. The 18 January 2007 report of a VA
mental disorders examination indicates he continued to be
employed as a roofing foreman and often had several crews for
which he was responsible. He enjoyed hunting and fishing and
visited his fiancée frequently, and he was interested in
establishing a nonprofit corporation to serve the needs of
disabled veterans interested in outdoor activities. He had not
lost any time from work as a result of cognitive disorder but it
was felt that his job performance was perhaps mildly impaired as
a result of his memory problems. The Director concluded that
although Petitioner had sustained significant injuries on 4
April 2004, which prompted his placement in a limited duty
status, it appears that his recovery had progressed to the point
where his health care providers determined that referral to the
Physical Evaluation Board (PEB) was not warranted. Petitioner’s
statement and post-separation VA records suggest no significant
impairment in civilian occupational pursuits utilizing skills
normal to his military occupational specialty as a rifleman,
e.g., hunting and fishing, in combination with community service
activities, management, and an active social life. In the
Director’s opinion, had referral to the PEB occurred, a finding
of fit for continued naval service would have been determined.

CONCLUSION

Upon review and consideration of all the evidence of record, and
notwithstanding the comments and recommendation contained in
enclosure (3), the Board concludes that Petitioner was not fit
to perform the duties of his military occupational specialty at
the time of separation due to the damage to his right ulnar
nerve sustained when he was wounded in Iraq. Contrary to the
opinion expressed by the Director, Secretary of the Navy Council
of Review Boards, the Board does not believe that Petitioner's
ability to engage in hunting and fishing as leisure activities,
and to work as a roofing supervisor and volunteer firefighter
does not suggest he was capable of performing the duties
required of a Marine rifleman. Accordingly, it 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 released from active duty on 9 December 2005 and transferred
to the Temporary Disability Retired List the following day with
a disability rating of 30 percent under VA Schedule for Rating
Disabilities code 5288-8516 for ulnar nerve laceration and right
thumb fracture (dominant), and that he be accorded a periodic

physical examination as soon as practicable.

b. That a copy of this Report of Proceedings be filed in
Petitioner's naval record.

4. 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.
,

ES R. EXNICIOS |
Recorder ue

5, The foregoing report of the Board is submitted for your
review and action.

ROBERT J. O'NEILL
Executive Director

(Be bo [iS

Reviewed and approved/dipampmemed:

LA lpeh

ROBERT L. WOODS

Assistant Genera! Counsel
(Manpower and Reserve Affairs)
1000 Navy Pentagon, Rm 4D548
Washington, DC 20350-1000