Docket No: 33-20 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD OF Ref: (a) 10 U.S.C. §1552 Encl: (1) DD Form 149 (NR20200000033) 1. Pursuant to the reference Subject, hereinafter referred to as Petitioner, filed the enclosure with the Board for Correction of Naval Records (Board), requesting that his record be corrected to void and remove all records pertaining to his separation from active duty on 20 May 2014 for weight control failure; to void his separation and correct his record to show he served on active duty for the duration of his enlistment and reached sanctuary at 18 years of service; to credit him with sufficient active service to reach 20 years and direct a transfer to the Fleet Reserve for 20 years of service with back pay, allowances, and retroactive retirement pay; and to find him unfit for separation from the Navy at the time of his discharge in May 2014. The Petitioner’s case was reconsidered in accordance with Board procedures that conform to Lipsman v. Sec’y of the Army, 335 F. Supp. 2d 48 (D.D.C. 2004). 2. The Board, consisting of , reviewed Petitioner’s allegations of error and injustice on 2 June 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, relevant portions of his naval service 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. It is in the interest of justice to review the application on its merits. c. Petitioner enlisted in the Navy and began a period of active duty on 23 July 1996. Petitioner trained and qualified as a Cryptologic Technician. In May 1998, early in Petitioner’s military career, he failed a Physical Readiness Test (PRT) due to a failure of the run portion of the assessment. Administrative Remarks dated 14 November 2003, state that Petitioner was counseled for exceeding body fat limits. Petitioner’s Medical Record reflects a 17 December 2003 entry noting that Petitioner had a thyroid problem which impacted his weight. In 2003/2004, Petitioner was evaluated by endocrinology and diagnosed with Hashimoto’s Thyroiditis. d. Between 2003 and 2010, Petitioner voluntarily participated in the Navy’s Fitness Enhancement Program (FEP). In November 2010, Petitioner was waived from the PRT. In May 2011, Petitioner participated in and passed the PRT. However, 25 January 2011 medical notes state that Petitioner experienced fluctuating weight over the past four years. February 2011 medical notes state that Petitioner had right thyroid gland enlargement and bilateral thyroid nodules, and that Petitioner had a history of thyroid antibodies and Hashimoto’s Thyroiditis. e. On 11 October 2011, Petitioner failed the Body Composition Analysis (BCA) portion of the PRT. On 17 May 2013, Petitioner again failed the BCA portion of the PRT. On 5 November 2013, he failed the BCA portion of the PRT. f. On 13 January 2014, Petitioner was notified that administrative separation proceedings were being initiated against him on the basis of weight control failure. He elected to appear before an administrative separation board. In March 2014, while pending administrative separation proceedings, Petitioner was referred to a civilian endocrinologist. Nonetheless, the administrative separation board convened and unanimously recommended that Petitioner be separated from the Navy. g. Commanding Officer, noted that Petitioner had over 17 years of active duty service but concurred with the administrative separation board and recommended that Petitioner be discharged with an honorable characterization of service. On 20 May 2014, Petitioner was discharged from the Navy on the basis of weight control failure, and received an honorable characterization of service and a reentry (RE) code of RE-3F. On 27 May 2014, Petitioner was seen by the civilian endocrinologist for which he received a referral in March 2014. The civilian endocrinologist diagnosed Petitioner with Chronic Thyroiditis. h. Petitioner previously petitioned the Board for corrective action in NR20130004635, NR2014000212, NR20170003186, and NR20190003379.1 His past requests were either denied or administratively closed, in part on the conclusion that there was no indication that he received a medical waiver for the BCA when he failed Cycle 2 2011, Cycle 1 2013, and Cycle 2 2013. The most recent Board that considered Petitioner’s request in executive session, NR20170003186, reviewed Petitioner’s assertion that he had a medical condition which adversely impacted his ability to meet the BCA standards but denied his request. 1 In NR4635-13, Petitioner requested that the Board void the PFA Cycle 2, 2011 failure because of lack of a command physical training program; and an Advisory Opinion was obtained and the request was denied. In NR2120-14, Petitioner requested removal of the PFA failures from Cycles 1 and 2, 2013, and reinstatement to active duty in paygrade E-8 or in the alternative, medical retirement; Advisory Opinions were obtained and the request was denied. In NR3186-17, through counsel, Petitioner asserted that the administrative discharge board failed to properly consider hyperthyroidism, did not consider errors by the chain of command, and unjustly discharged him after almost 18 years of service; the case was closed. In NR3379-19, Petitioner’s case was administratively closed. i. In Petitioner’s request for reconsideration, Petitioner requests that all records pertaining to his separation for weight control failure be voided and removed; that his discharge from the Navy be voided and his record corrected to show that he served on active duty for the duration of his enlistment and reached sanctuary at 18 years of service; and that he be credited with sufficient active service to reach 20 years of service for retirement, and that he be transferred to the Fleet Reserve. He submitted a supplemental claim contending that he was not fit to be separated from active duty. j. Petitioner contends that he had a thyroid condition which should have precluded him from being discharged from the Navy. Petitioner asserts that the Navy violated DODI 1332.14 when Petitioner was processed for weight control failure despite the diagnosed medical condition. Petitioner also claims the Navy violated U.S. Code § 1145 and MANMED Art. 15-20 by not administering a separation physical before his discharge on 20 May 2014. He asserts that had the required separation exam been administered, the manifestations of his thyroid condition would have been identified, and noted, and the Navy would have been precluded from separated him as it did. He claims that had his issues been flagged at a separation physical, he would have been retained on active duty and referred to a Physical Evaluation Board (PEB) for a fitness determination. Petitioner also contends that the Navy violated OPNAVINST 6110.1J by not establishing and maintaining a lawfully constituted FEP. Petitioner also asserts that the administrative separation board should have suspended its proceedings pending the results of his endocrinology evaluation. k. Petitioner’s current application was first considered by a three-member panel sitting in executive session on 31 March 2020. Pending final approval of the 31 March 2020 decision, Petitioner submitted additional information on 20 April 2020 and on 15 May 2020. The same three-member panel re-convened on 2 June 2020, and took into consideration all supplemental submissions provided by the Petitioner in support of his request. l. The 20 April 2020 supplemental information included a 30 March 2020 letter from Dr. of Endocrinology which states that “it is possible that (Petitioner’s) thyroid disorder contributed to difficulty in managing his weight while he was on active duty.” The 15 May 2020 supplemental information requested that the Board considered an additional claim for relief, specifically that Petitioner was not medically fit to separate on 20 May 2014. The 15 May 2020 supplemental information noted that Veterans Affairs (VA) rated Petitioner as 100% disabled based on Chronic Thyroiditis, which was diagnosed only one week after his discharge from the Navy. The information provided by Petitioner supports his 27 May 2014 diagnosis of Chronic Thyroiditis by a civilian endocrinologist. His VA records state that he was assigned a 100% evaluation for hypothyroidism with an effective date of 21 May 2014. CONCLUSION: Upon review and consideration of all the evidence of record, the Board finds the existence of an error warranting partial relief. In this regard, the Board determined that Petitioner was unfit for continued naval service due to hyperthyroidism at the time of his discharge from the Navy based on his in-service symptoms and diagnosis of thyroid-related disease and inability to maintain BCA standards. The Board also relied on Petitioner’s post-discharge history to substantiate that his hyperthyroidism existed prior to his discharge from the Navy, and prevented him from performing the duties of his office, grade, rank, or rating. Accordingly, the Board finds his placement on the Permanent Disability Retirement List (PDRL), effective the date of his discharge from the Navy, with a 100% disability rating consistent with his assigned Department of Veterans Affairs rating is appropriate. The Board finds that further corrective action is not warranted. Transfer to the PDRL/Determination of Unfitness. In consideration of Petitioner’s contention that he had a medical condition which precluded him from being discharged without processing through a medical evaluation review,2 the Board noted that he presented with thyroid issues as early as December 2003, and that he was given an in-service diagnosis of Hashimoto’s Thyroiditis, an autoimmune disease. Petitioner’s medical records also reflects a history of thyroid antibodies. Following his initial thyroid issues in 2003, Petitioner struggled to maintain compliance with the expected BCA standards but continued to serve honorably through May 2014. 2 The Board noted that Petitioner’s 15 May 2020 supplemental submission raised the issue of lack of fitness for separation but did not specifically request a determination of unfitness to perform the duties of office, grade, rank or rating because of disease or injury incurred or aggravated while entitled to basic pay, and a subsequent medical retirement. In light of the available information in Petitioner’s record and in consideration of the evidence provided in support of Petitioner’s application, the Board determined that Petitioner likely was not fit for continued service at the time of his discharge in May 2014, and should have received a disability evaluation and medical retirement rather than remain on active duty. The Board considered that Petitioner attributes his inability to comply with BCA standards to his thyroid conditions. Pursuant to SECNAVINST 1850.4 series, para. 3307, the inability to take or pass the PRT/PFT will not be the sole basis for a finding of unfit to continue naval service. Additionally, SECNAVINST 1850.4 series, directs that Commanding Officers provide the Medical Treatment Facility with a non-medical assessment that details for how well the member performs his military duties, e.g. rating duties, field duties or exercises, participation in the PRT/PFT, etc. In Petitioner’s case, Petitioner was not referred to the PEB process under SECNAVINST 1850.4, and was administratively separated on the sole basis of weight control failure. Despite Petitioner’s history of thyroid issues, his Commanding Officer does not appear to have engaged with the Medical Treatment Facility with a non-medical assessment, nor did the command refer Petitioner to a Medical Board or the PEB. The Board determined that Petitioner’s inability to successfully meet the BCA standards, which resulted in multiple weight control failures and subsequent PRT failures, alone was an insufficient reason for a finding of unfitness. However, the Board considered the totality of the available medical information from Petitioner’s period of active duty service and his post-discharge medical diagnoses and treatment, and found merit in Petitioner’s assertion that he had a diagnosed medical condition that impacted his ability to meet the BCA standards. In light of the medical information about Petitioner’s in-service thyroid issues dating back to 2003, the VA’s 100% disability evaluation for hypothyroidism with an effective date of 21 May 2014 (one day after Petitioner’s discharge from active duty), and in consideration of the 2020 medical opinion of Endocrinology, the Board found that Petitioner had a medical condition that impacted his fitness for duty. The Board concluded that prior to his discharge from active duty, Petitioner should have been referred to the PEB under SECNAVINST 1850.4 series. Had Petitioner been evaluated by the PEB, the Board found that based on his VA disability rating, the pending May 2014 endocrinology evaluation and subsequent diagnosis on 27 May 2014, his ongoing medical issues post-discharge, and the 2020 Endocrinology opinion, that Petitioner would have qualified for transfer to the Permanent Disability Retired List (PDRL) with 100% disability rating. Accordingly, the Board found that Petitioner is entitled to relief in the form of a transfer to the PDRL on 20 May 2014, at 100% rating due to hypothyroidism, VASRD DC 7900. Voiding and Removing All Records Pertaining to Separation. With respect to voiding and removing all records pertaining to separation from the Navy, the Board found that the documents should remain as they accurately reflect the process by which Petitioner was separated from the Navy. Although the Board found that Petitioner appears to have had a qualifying medical condition or disability which was not properly referred to a PEB, the command’s administrative separation of Petitioner was predicated on the lack of medical waivers for his participation in the PRT. Since the command appears to have initiated and executed the discharge proceedings in reliance on the accurate BCA records (for which there were no medical waivers for the Fall of 2011, the Spring of 2013, or the Fall of 2013), the Board concluded that the records pertaining to Petitioner’s separation should remain in Petitioner’s record as they reflect the actions taken by the command during Petitioner’s period of active duty service. In consideration of the assertion that the administrative separation board should have been suspended pending the results of Petitioner’s endocrinology evaluation, thereby nullifying the current discharge due to error and injustice, the Board noted that the available record indicates that the administrative separation board was informed of the pending endocrinology referral. Nonetheless, the administrative separation board elected to proceed based on the available information. The Board found that Petitioner had counsel in accordance with MILPERSMAN 1910-504, Right to Counsel, and that he was permitted to present evidence in accordance with MILPERSMAN 1910-510, Presentation of Evidence. Additionally, the Board found that in accordance with MILPERSMAN 1910-500, Guidelines on Conducting an Administrative Separation Board, the pending medical appointment did not preclude the administrative separation board from proceeding and making a recommendation to the Separation Authority. The Board concluded that the administrative separation board acted in accordance with the regulatory guidance of MILPERSMAN 1910 series. The Board considered Petitioner’s assertion that the Navy violated DODI 1332.14 when he was processed for weight control failure despite his diagnosed medical condition. DODI 1332.14 states that an enlisted Service member may be separated for failure to meet weight control standards established in accordance with DoDD 1308.1 when it is determined that the Service member is not medically diagnosed with a medical condition that precludes or interferes with weight control and the Service member fails to meet weight control standards, and the sole reason for separation is failure to meet weight control standards. The Board noted that Petitioner did not have a medical waiver for participation in the BCA portions of the PRTs for the periods in the Fall of 2011, the Spring of 2013, or the Fall of 2013, nor did he have an in-service diagnosis of a medical condition that precluded or interfered with weight control. The Board noted that Petitioner has several medical diagnoses relating to his thyroid as early as 2003; based on the information he submitted with his application, the Board also found that he was routinely evaluated by Medical for his thyroid condition from 2003 through his discharge in 2014. As evidenced by Navy internist Dr. ’s 22 February 2011 notes, on at least one occasion, a PRT or BCA waiver was considered but not granted. The Board concluded, however, that in consideration of Petitioner’s post-discharge medical records, his in-service diagnoses, and the VA’s 100% disability rating with an effective date of 21 May 2014, Petitioner should have been processed for separation under SECNAVINST 1850.4 series for a qualifying medical condition. The Board considered Petitioner’s assertion that the Navy violated title 10, U.S. Code § 1145 and MANMED Art. 15-20 by failing to provide him a separation physical before his discharge on 20 May 2014.3 Section 1145 (a)(5)(A) states that “(t)he Secretary concerned shall require a member of the armed forces scheduled to be separated from active duty . . . to undergo a physical examination immediately before that separation. The physical examination shall be conducted in accordance with regulations prescribed by the Secretary of Defense.” MANMED Art 15-20 states that the “primary purpose of medical examinations are to ensure that individuals (are) physically capable of performing assigned and prospective duties without unnecessary risk of injury or harm . . . physically capable of performing assigned and prospective duties without assignment limitations or modifications to existing equipment and systems . . . (and) (n)ot likely to incur a physical disability as a result of military service.” MANMED Art 15-20 sates that if a member has otherwise undergone a physical examination within 12 months before the scheduled date of separation from active duty, the requirement for a physical separation may be waived in accordance with regulations. Such regulations shall require that a waiver may be granted only with the consent of the member and with the concurrence of the member’s unit commander. Petitioner acknowledges having received medical examinations in the 12 months4 prior to his separation, but asserts that the examinations do not comport with the extensive requirements of MANMED Art 15-20. Petitioner also claims that the Navy did not offer him the required physical examination or the opportunity to waive the examination, which he states he would not have done. The Board noted that in April 2014, Petitioner completed and signed a Preseparation Counseling Checklist for Active Component (AC), Active Guard Reserve (AGR), Active Reserve (AR), Full Time Support (FTS) and Reserve Program Administrator (RPA) Service Members (DD Form 2648). DD Form 2648 sections 15 and 16 have notations pertaining to Physical and Mental Health and Well-Being and Health and Life Insurance. The Board acknowledged that DD Form 2648 does not supplant a separation physical, but did take it into consideration when determining whether the command complied with the requirements to afford Petitioner with appropriate counseling and screenings prior to his discharge, and weighed the completion of DD Form 2648 when determining whether the presumption of regularity should be applied. Although the available record does not reflect a documented separation physical, the Board determined that Petitioner did receive appropriate and continued medical care in the 12-months prior to his discharge, and the care was consistent with the primary purpose of separation physicals as outlined in MANMED Art 15-20. The Board noted that Petitioner’s administrative separation board proceedings were executed with counsel, he exercised the right to appear before 3 The Board noted that you previously petitioned the Board for corrective action in NR20130004635, NR2014000212 and NR20170003186, and that you do not appear to have raised a claim of error or injustice with respect to an absence of a qualifying medical separation physical until the current petition for reconsideration of the previous denials. 4 The medical records submitted with Petitioner’s application reflect appointments in August 2013, October 2013, November 2013 and March 2014, all of which occurred within the 12-month period prior to separation from the Navy in May 2014. an administrative separation board, and the Commanding Officer endorsed and routed the recommendation for separation prior to the final approval of discharge. The Board also weighed DD Form 2648, and considered the continued health care in the 12-months prior to discharge, in determined whether Petitioner was afforded appropriate medical screening and counseling. The Board concluded that the absence of a separation physical alone in the record does not establish that Petitioner was denied the opportunity to receive appropriate medical screening as required by 10 U.S.C. § 1145/MANMED Art. 15-20. The Board also determine that based on the completion of DD Form 2648, it appears as if the command gave Petitioner the opportunity to receive counseling and information prior to his discharge. Additionally, the Board found that the extensive and frequent medical screenings in the 12-month period prior to the discharge, to include an appointment in March 2014, ensured that even if Petitioner was not afforded a separation physical, the absence of such a separation physical was harmless error. The Board noted that 10 U.S.C. § 1142 does not establish a remedy for a violation of its provisions. However, the Board remarked that its recommendation for corrective action with respect to a transfer to the PDRL for failure to refer Petitioner to the PEB addresses Petitioner’s concerns that the separation physical alone would have flagged his medical issues for appropriate processing prior to discharge. The Board considered Petitioner’s contention that the Navy violated OPNAVINST 6110.1J and Navy Physical Readiness Program, Guide 13 (2016 and 2019) by failing to establish and maintain a lawfully constituted Fitness Enhancement Program (FEP) for him. The Board noted that Petitioner had previously raised this issue and an Advisory Opinion dated 4 September 2013, was obtained from Physical Readiness Program Officer (OPNAV N170), to assist NR20130004635 in making its determination of whether Petitioner was subjected to error or injustice with regard to PFA failures due to lack of a FEP. The Advisory Opinion stated that meeting physical fitness assessment standards is the member’s responsibility, and the Board in NR20130004635 concurred with the Advisory Opinion and denied Petitioner’s request for corrective action. Petitioner again petitioned the Board and an Advisory Opinion dated 24 June 2014, was obtained from OPNAV 170 to assist NR20140002120. The Advisory Opinion stated that “(r)egardless of the command having a dedicated FEP, individual members are required to maintain standards for continued naval service.” The Board in NR20140002120 again denied Petitioner’s request for corrective action. The current Board concurred with the reasoning in the previous denials as related to the FEP, and again determined that regardless of the command’s inaction with respect to a FEP program, the inability to meet BCA standards was not excused by lack of access to a structured FEP as envisioned by OPNAVINST 6110.1J. Void separation and correct record to show Active Duty for Duration of enlistment, Reaching Sanctuary at 18 Years of Service. In consideration of the Board’s aforementioned conclusions pertaining to Petitioner’s allegations of error and injustice, the Board determined that Petitioner should be placed on the PDRL, effective the date of his discharge from the Navy, with a 100% disability rating on the basis of hypothyroidism, VASRD DC 7900. The Board found that Petitioner’s medical condition was such that at the time of his separation in 2014, he would have been unfit for performance of his duties under SECNAVINST 1850.4 series, and therefore corrective action to reflect an active duty status for the duration of enlistment, reaching sanctuary at 18 years of service is not an appropriate remedy. Credit Petitioner with Sufficient Active Service to reach 20 years of service and Direct Transfer to the Fleet Reserve. Based on the determination that Petitioner would have been unfit for performance of his duties under SECNAVINST 1850.4 series due to a qualifying medical condition, the Board concluded that Petitioner is not entitled to corrective action which reflects continuation on active duty or constructive active duty service credit to reach 20 years of service and transfer to the Fleet Reserve. However, based on the Board’s overall conclusions and determinations, the Board found that a transfer to the PDRL, effective 20 May 2014, is appropriate. Determination of Medical Unfitness for Separation. The Board determined that Petitioner should have been evaluated by the PEB prior to his discharge in May 2014. Had he been evaluated by the PEB, the Board concluded that Petitioner would have been found unfit to perform his duties, and therefore separated on the basis of a transfer to the PDRL. The Board found that Petitioner’s medical conditions, had they been vetted through the PEB, would have resulted in unfitness for processing by an administrative separation board due to weight control failure but would have qualified him for discharge due to unfitness to perform the duties of his office, grade, rank or rating because of a disease or injury incurred or aggravated while entitled to basic pay, as outlined in SECNAVINST 1850.4 series. RECOMMENDATION: In view of the above, the Board directs the following corrective action: Petitioner’s naval record be corrected by placing Petitioner on the Permanent Disability Retirement List for Hyperthyroidism, VASRD DC 7900, with a disability rating of 100%, effective the date of his discharge from the Navy. Petitioner’s disability condition was not the result of a combat-related injury as defined in Title 26, United States Code, Section 104(b)(3). Petitioner will be issued a new DD Form 214 consistent with the change. That a copy of this report of proceedings be filed in Petitioner’s naval record. That, upon request, the Department of Veterans Affairs be informed that Petitioner’s application was received by the Board on 2 January 2020. 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. 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 the reference, has been approved by the Board on behalf of the Secretary of the Navy. 6/17/2020