DEPARTMENT OF THE NAVY
BOARD FOR CORREC ION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 2O37O~b1OQ

JRE
Docket No. 10188-05
9 February 2007

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 8 February 2007. 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.

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 reenlisted in the Navy on 13 December 2001 after a break in service. It appears that your enlistment was fraudulent, in that you concealed the fact that you had applied for and received disability ratings and compensation from the Department of Veterans Affairs (VA) for several conditions. You were evaluated by an abbreviated limited duty medical board on 29 May 2003, and placed on limited duty for residuals of spinal surgery. Your condition was reevaluated on 28 August 2003, and you were returned to full duty on that date. On 7 January 2004, after waiving your right to consult with and be represented by counsel, and to appear before an administrative discharge board, you were discharged for the convenience of the government by reason of a condition, not a disability, that interfered with your performance of duty. On 27 September 2004, the VA awarded you disability ratings for eleven conditions, with a combined rating of 20% from 31 January 1999 to 13 December 2001, when you reenlisted, and 30% from 8 January 2004, the day following your discharge.

The Board concluded that your receipt of disability compensation from the VA is not probative of the existence of material error or injustice in your Navy record, because the VA assigns disability ratings without regard to the issue of fitness for military service. Your case is a good example of this: even though the VA considered you to be 20% disabled on 12 December 2001, you were considered fit for military duty and permitted to reenlist on 13 December 2001. As you have not demonstrated that you were unfit to reasonably perform the duties of your office, grade, rank or rating by reason of physical disability when discharged in 2004, the Board was unable to recommend any corrective action in your case. 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