DEPARTMENT OF THE NAVY 
BOARD FOR CORRECTION OF NAVAL RECOR
ARLINGTON, VA 22204-2490 

Docket No. 2650-19 
Ref: Signature Date 

Dear 

This is in reference to your application for correction of your naval record pursuant to Title 10, United States Code, Section 1552.  After careful and conscientious consideration of the entire record, the Board for Correction of Naval Records (Board) found the evidence submitted was insufficient to establish the existence of probable material error or injustice.  Consequently, your application has been denied. 

Although your application was not filed in a timely manner, the Board found it in the interest of justice to waive the statute of limitations and consider your case on its merits.  A three-member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 13 February 2020.  The names and votes of the members of the panel will be furnished upon request. 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, relevant portions of your naval record and applicable statutes, regulations and policies.  In addition, the Board considered the advisory opinions contained in PERS Memorandum 5420 PERS-832 of 18 December 2019 and Navy Personnel Command memorandum 5400 PERS-836/034; copies of which were previously provided to you for comment. 
 
A review of your record shows that you entered active duty with the Navy in November 1997.  In October 2010, you failed to meet body fat standards with a 30% Body Composition Assessment (BCA).  This resulted in your first Physical Fitness Assessment (PFA) failure.  You subsequently failed the next two PFA cycles with 25% and 32% BCAs.  As a result, you were notified of administrative separation processing for weight control failure on 16 December 2011.  You were discharged on 5 March 2012 with an Honorable characterization of service.

The Board carefully considered your arguments that you were erroneously discharged for weight control failure.  You also assert that you were unfit for continued naval service due to multiple disability conditions.  Finally, you request to be retired under the Temporary Early Retirement Authority (TERA) if the Board determines placement on the disability retirement list is inappropriate.  Unfortunately, the Board disagreed with your rationale for relief.  In making their findings, the Board substantially concurred with the advisory opinions contained in PERS Memorandum 5420 PERS-832 of 18 Dec 2019 and Navy Personnel Command memorandum 5400 PERS-836/034.
 
First, the Board concluded the evidence supports your administrative separation for weight control failure.  You argue that your first PFA failure should not count since your BCA was taken within your first 10 weeks of reporting to your command.  NAVADMIN 247/09 paragraph 2.D. states “In all cases (with the exception of approved medical waivers), sailors must meet body fat standards to pass the semi-annual requirements.  This includes those sailors with less than 10 weeks on board during the official PFA cycle.” Based on this guidance, the Board concluded your October 2010 BCA was properly taken for Cycle 1 2010 PFA and counted as a PFA failure since you were not within body fat standards for the official PFA cycle.  When considered with the two subsequent PFA failures due to your BCA measurements, the Board concluded you failed three official PFAs within a four-year period qualifying you for administrative separation on the basis of your weight control failure.  The Board was not convinced by your injustice argument that a subsequent change in PFA policy would have prevented your administrative separation since that policy was not implemented until after your administrative separation.  They felt you were properly counselled of the consequences of your continued PFA failures based on the policy in place at the time and, therefore, had ample opportunity to correct your deficiencies prior to the initiation of administrative separation processing.
 
Second, the Board determined you did not meet the requirements for placement on the disability retirement list.  In order to qualify for military disability processing, a service member must be unfit for continued naval service due to a qualifying disability condition.  Unfitness is defined as an inability to perform the duties of your office, grade, rank or rating as a result of the disability condition.  Despite evidence you received treatment for disability conditions while on active duty, the Board found insufficient evidence those disability conditions caused a substantial enough occupational impairment to merit a finding of unfitness for continued naval service.  Specifically, the Board examined your performance evaluation commencing on 16 November 2011 and ending on your release from active duty.  You earned a trait average of 3.43 despite a 2.0 in military bearing/character due to your weight control issues.  The Board also noted your performance earned you three Sailor of the Quarter nominations in addition to three other performance related awards.  This was strong evidence to the Board that you were performing your duties well above fleet standards up until your release from active duty. Based on documented evidence of your superior performance in your rating and paygrade, the Board concluded the preponderance of the evidence does not support a finding you were unable to perform the duties of your office, grade, rank or rating due to a disability condition.  Therefore, the Board also concluded you did not qualify for military disability benefits including placement on the disability retirement list.

Third, the Board determined you do not qualify for retirement under TERA.  Since you do not possess the requisite years of service to qualify under TERA, the Board concluded you are not eligible for retirement under that authority.  The Board did not think it proper to grant you service credit to make you eligible based on their determination that you were appropriately processed and discharged for weight control failure.  While the Board empathizes with your current medical condition, they felt compensation and treatment for your disability conditions fall outside the scope of the Department of Defense disability system and under the purview of the VA.  Accordingly, the Board found insufficient evidence of error or injustice to warrant a change to your record.  

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 matters, which will require you to complete and submit a new DD Form 149.  New matters are those not previously presented to or considered by the Board.  In this 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,