DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 4531-19 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Ref: (a) Title 10 U.S.C. 1552 Encl: (1) DD Form 149 w/attachments (2) Director CORB letter 1910 CORB: 001 of 4 May 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 retroactively place him on the disability retirement list and upgrade his characterization of service. 2. The Board, consisting of , reviewed Petitioner’s allegations of error and injustice on 23 July 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 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 enlisted in the Navy Reserve in December 1984. He commenced his initial active duty period in March 1985 and served until October 1985. His records shows that he served without incident until he was diagnosed with Non-Hodgkin’s Lymphoma in 2001 that eventually led to a May 2002 Bureau of Medicine and Surgery (BUMED) determination that Petitioner was not physically (NPQ) qualified for retention in the Navy Reserve due to his diagnosis. Petitioner’s command unsuccessfully attempted to notify him of his NPQ status and election of rights on several occasions between May 2002 and February 2003 before discharging him in March 2003 with a General characterization of service due to his NPQ status. Petitioner was finally notified on 12 May 2003 and elected to be discharged without a Physical Evaluation Board review. On 21 March 2012, Petitioner passed away due to medical conditions related to his Non-Hodgkin’s Lymphoma. c. In 2014, an independent medical review was conducted of Petitioner’s record. It determined that Petitioner’s Non-Hodgkin’s Lymphoma was incurred during his military service and prevented him from performing his military duties. Based on the medical evidence, the opinion states that Petitioner should have been referred to the Disability Evaluation System (DES). Petitioner subsequently filed an application with this Board arguing that he was erroneously discharged without the benefit of DES processing despite being unfit for continued naval service due to his Non-Hodgkin’s Lymphoma, Pes Planus, and Scoliosis. The application states that disability regulations were not followed in administratively separating Petitioner for his NPQ status. d. In correspondence attached at enclosure (2), the office having cognizance over Petitioner’s request to be placed on the disability retirement list determined that the evidence does not support relief. The Petitioner provided rebuttal evidence to enclosure (2) that was considered by the Board. CONCLUSION Upon review and consideration of all the evidence of record, the Board finds the existence of an injustice warranting partial relief. Specifically, the Board determined that the preponderance of the evidence supports upgrading Petitioner’s characterization of service to Honorable. The Board found no basis in Petitioner’s record for assigning him a General characterization of service. The Board found that Petitioner was a stellar performer during his years of service in the Navy Reserve and met the requirements for an Honorable characterization of service. Regarding his request to be placed on the disability retirement list, the Board disagreed with Petitioner’s rationale for relief. In making their findings, the Board substantially concurred with the Advisory Opinion at enclosure (2). Specifically, the Board concluded the preponderance of the evidence does not support a finding that his Non-Hodgkin’s Lymphoma was incurred or aggravated beyond its natural progression while he was on active duty. Title 10, United States Code, Section 1201 allows the Secretary of the Navy to retire a service member who is unfit for continued naval service due to a disability condition incurred while entitled to basic pay provided certain criteria are met. Subparagraph (c) of the section establishes the membership eligibility criteria for disability retirement from the military. It requires a member to be a regular component of the armed forces entitled to basic pay or to be a non-regular component member who is on active duty for a period of more than 30 days. Additionally, other non-regular component members may also qualify under specific circumstances that are not relevant to this case. Consistent with that statutory requirement, SECNAVINST 1850.4E requires inactive duty reservists to be issued a Notice of Eligibility (NOE) in order to establish they meet the membership criteria contained in Title 10, United States Code, Section 1201(c). Those inactive duty reservists who are not issued a NOE and have been determined to be NPQ by BUMED may request a PEB review to contest their NPQ status but are not normally entitled to a PEB fitness review, i.e. DES processing. However, an exception to the NOE requirement states an inactive reservist may be processed into the DES if the member is ordered to active duty, serves more than 30 days, incurs or aggravates a condition during this period of active duty, and has medical documentation that includes the approximate date of incurrence/aggravation. In examining Petitioner’s record, the Board was unable to establish an approximate date of occurrence/aggravation for his Non-Hodgkin’s Lymphoma. As a result, the Board was unable to conclude that he met the membership criteria under Title 10, United States Code, Section 1201(c). While Petitioner’s record shows that he served multiple brief periods of active duty training period in 2000 and 2001, none of those periods exceeded 30 days. Therefore, the Board required medical evidence that establishes, by a preponderance of the evidence, Petitioner’s Non­Hodgkin’s Lymphoma was incurred or aggravated beyond its natural progression during a specific day of his active duty service. Unfortunately, due to the nature of Petitioner’s condition and his limited service on active duty, they were unable to establish the exact date his Non­Hodgkin’s Lymphoma was incurred or that his condition was aggravated as a result of his brief periods of active duty service. As a result, while the Board was sympathetic to Petitioner’s application, they concluded he was properly processed for administrative separation as a result of his NPQ status. Since he ultimately elected to be separated without a PEB review and did not qualify for a DES referral based on the lack of medical evidence, the Board also concluded Petitioner’s separation prior to his election of rights was harmless error. RECOMMENDATION In view of the above, the Board directs the following corrective action. Petitioner’s naval record be corrected by changing his characterization of service to Honorable. Petitioner will be issued a new DD Form 214 consistent with this change. 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 Regulation, 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 reference (a), has been approved by the Board on behalf of the Secretary of the Navy.