Docket No. 2510-20 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD ICO FORMER MBR , USN, Ref: (a) Title 10 U.S.C. 1552 Encl: (1) DD Form 149 w/attachments (2) PERS 832 letter 5420 PERS-832 of 7 May 2020 (3) Petitioner’s rebuttal response of 17 July 2020 1. Pursuant to the provisions of reference (a), Subject, hereinafter referred to as Petitioner, filed enclosure (1) with the Board for Correction of Naval Records (Board), requesting that Petitioner’s naval record be corrected to place her on the disability retirement list or grant service credit to allow her to retire with 20 years of creditable service. 2. The Board reviewed Petitioner’s allegations of error and injustice on 27 August 2020 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. b. Petitioner entered active duty with the Navy in July 1995. Throughout her career, she was treated for a number of disability conditions that included breathing, mental health, and various orthopedic issues. She consistently gained weight as she approached 15 years of active duty service despite her superior performance that earned her an E-7 paygrade. Petitioner failed her third Body Composition Assessment in November 2012 and was notified of administrative separation processing for Physical Fitness Assessment failure in January 2013. However, she was allowed to continue on active duty until 7 October 2014 when she was discharged for weight control failure with slightly over 19 years of active duty service. c. Petitioner argues that she was improperly discharged for weight control failure since she was within two years of retirement eligibility. She asserts that Title 10, United States Code, Section 1176 prohibits service members from being separated within two years of retirement eligibility unless authorized under any other provision of law. Alternatively, she alleges that she was unfit for continued naval service due to the various disability conditions for which she was treated during her period of active duty. d. Enclosure (2) states that the MILPERSMAN qualifies as “any other provision of law” under 10 U.S.C. § 1176 and provides authorization for Petitioner’s separation. Petitioner argues in enclosure (3) that the MILPERSMAN does not qualify as a provision of law. e. In regard to Petitioner’s request for a personal appearance, the Board determined that a personal appearance was not necessary and considered the case based on the evidence of the record. CONCLUSION Upon review and consideration of all the evidence of record, the Board finds the existence of an error and injustice warranting the following corrective action. The Board determined that Petitioner qualified for protection from administrative separation for weight control failure under 10 U.S.C. § 1176 since she possessed over 19 years of qualifying service toward retirement at the time of her discharge. The Board disagreed with enclosure (2) that states the MILPERSMAN qualifies as a provision of law, as described in 10 U.S.C. § 1176, that allows the Navy to administratively separate service members within two years of retirement eligibility. In the Board’s opinion, there must be a separate statute or law that specifically allows the Navy to separate service members for weight control failure in order to justify Petitioner’s administrative separation. Additionally, the Board noted that Petitioner was notified of administrative separation processing several months prior to her reaching 18 years of active duty service but the Navy chose to retain her on active duty well into her 19th year of service before administratively separating her. The Board felt this created a substantial injustice that should be remedied through granting of service credit to allow Petitioner to reach 20 years of service and retirement eligibility. Regarding Petitioner’s request to be placed on the disability retirement list, the Board concluded insufficient evidence exists to support a finding that she was unfit for continued naval service at the time of her discharge. In order to qualify for military disability benefits, a service member must be unable to perform the duties of their office, grade, rank or rating due to a qualifying disability condition. In Petitioner’s case, despite received a lower than normal trait average on her discharge performance evaluation, she was described as an “outstanding Chief Petty Officer and Technical Master.” In addition, she was recommended for early promotion even with her weight issues. This convinced the Board that Petitioner was fully capable of performing the duties of her office, grade, rank or rating regardless of any existing disability conditions or related symptoms. Based on this finding, the Board concluded the preponderance of the evidence does not support her placement on the disability retirement list. RECOMMENDATION That Petitioner’s naval record be corrected by setting aside her administrative separation and granting her service credit to allow her to qualify for retirement with 20 years of active duty service. Petitioner will subsequently be retroactively retired from the Navy and issued a new DD Form 214 consistent with these changes. 4. Pursuant to Section 6(c) 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 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. 5. The foregoing action of the Board is submitted for your review and action. 9/8/2020 Assistant General Counsel (Manpower and Reserve Affairs) Reviewed and Approved Board Recommendation (Grant Full Relief)