DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100

JRE
Docket No: 7295-02
26 February 2003

This is in reference to your application for correction of your naval record pursuant to the provisions of title 10 of the United States Code, section 1552.

A three-member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 21 February 2003. 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, your naval record and applicable statutes, regulations and policies. In addition, it considered the comments of your counsel.

After careful and conscientious consideration of the entire record, the Board found that the evidence submitted was insufficient to establish the existence of probable material error or injustice.

The Board found that you were evaluated by a medical board on 19 August 1997, and given diagnoses of persistent lumbar syndrome, and discogenic pain at L5-S 1. On 13 March 1998, the Physical Evaluation Board (PEB) made preliminary findings that you were unfit for duty because of persistent lumbar syndrome, which it rated at 10% under VA code 5295, as lumbosacral strain. You rejected those findings and demanded a formal hearing; however, on 21 May 1998, you withdrew your demand, and accepted the preliminary findings of the PEB. You were discharged with entitlement to disability severance pay on 31 July 1998. The Department of Veterans Affairs (VA) initially awarded you a disability rating of 20% for degenerative joint disease, post fusion, L5-S 1, with degenerative joint diseases, effective from 1 August 1998. On 9 August 1999, based on the results of an examination conducted on 13 Apr11 1999, the VA increased your rating to 40%, effective 1 August 1998. On 2 May 2002, the rating for the lower back condition was increased to 60%, and aa 10% rating was added for the upper back condition, both effective from 26 June 2001.

The Board carefully considered the VA rating decision of 9 August 1999, but found it insufficient to warrant any corrective action in your case. In this regard, it noted that although the VA made the 40% rating effective the day following your discharge from the Navy, the increase was based, in large part, on deterioration of your condition which occurred after you were discharged. The Board noted that the rating assigned by the PEB, which you accepted, reflects the impairment caused by your condition on the date of discharge. It also noted that ratings assigned by the military departments cannot be increased to reflect post-discharge changes in the severity of rated conditions. As you have not demonstrated that you were entitled to a rating of 30% or higher as of 31 July 1998, the Board was unable to recommend that your record be corrected to show that you were retired by reason of physical disability, vice discharged. Accordingly, your application has been denied. The names and votes of the members of the panel will be furnished upon request.

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 and material evidence or other matter not previously 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,

W.	DEAN PFEIFFER
Executive Director